The government has announced plans to bring forward a ‘Brexit Freedoms’ Bill to make it easier to amend or repeal retained EU law, and to alter its special status. Hannah White argues that watering down scrutiny of changes to rights and regulations – simply because they originated during the UK’s membership of the EU – would be the opposite of parliament ‘taking back control’
During the UK’s 40-year membership of the EU, many laws were incorporated into the UK statute book using secondary legislation. The government made regulations which were approved by parliament without the need to pass a bill through parliament. This was justified on the basis of volume and speed – there simply would not have been time for parliament to pass enough bills to give effect to the number of EU instruments that emerged from the bloc. And sometimes it was impossible for MPs to amend or reject these instruments, once the government had signed up to them.
But these were not laws simply imposed on the UK by the EU. They had been discussed – and in many cases initiated by UK ministers working with their EU counterparts, and then scrutinised by UK members of the European Parliament before the UK was required, as a member state, to put them into law. In many cases – for example on environmental regulations – the UK would have argued for a stronger version of the law than the one that eventually emerged from the EU. In other cases, the laws required the UK to compromise, under the law-making process to which it had signed up. At the moment of Brexit all these laws were preserved within the UK statute book as ‘retained EU law’ – in order to provide a degree of legal continuity.
The government should not weaken MPs’ powers to scrutinise policy reclaimed from the EU
The government has announced that it will pass a bill to make it easier for the Executive to alter or repeal retained EU law without having to pass primary legislation. Full details of the proposed “Brexit Freedoms Bill” have yet to emerge (spoiler – it won’t be called that as bills are not allowed to be titled with a slogan), but a press release from the government says the new mechanism will be used to change “outdated” EU law to ensure “that the UK can capitalise on Brexit freedoms more quickly”.
The government says that, “Many EU laws kept on after Brexit… did not reflect the UK’s own priorities or objectives”. This may be true, but ministers’ view on which laws were undesirable obviously reflects their own political position and policy objectives. There is no immutable truth about the interests of the UK against which retained EU law can be tested. It is important that any political decision to repeal or change these laws (in anything other than a limited and technical way) receives proper parliamentary scrutiny in the same way as any other policy proposal would.
The Attorney General, Suella Braverman is quoted as saying that, “[EU] rules often had limited meaningful parliamentary scrutiny, and no democratic legitimacy in the UK at all.” The government is right that parliamentary processes for scrutiny of secondary legislation are deeply inadequate. But it is inconsistent to then argue that it is desirable or even necessary to use these processes to review and repeal legislation that originated from the EU. The fact that MPs have regained the power to scrutinise the broad areas of policy previously determined at an EU-level, should strengthen the case for them exercising that right, rather than weakening it.
There is plenty of time in the parliamentary timetable to scrutinise changes to EU laws
The government’s justification for using secondary legislation is that this will allow it to move more quickly, but this is unpersuasive for two reasons. The first is the need for speed – other than the government’s wish to deliver a “Brexit dividend” for political reasons ahead of the next general election, there is no good reason that these changes need to be made particularly quickly. Ministers may have got used to legislating rapidly under the time pressure of the Article 50 process and during the Covid-19 pandemic, but neither of those external time pressures now apply. Indeed many people have noted the lightness of the government’s legislative agenda during this parliamentary session. Parliament has been far from clogged up with primary legislation since the 2019 general election – the suspicion has to be that ministers have simply come to prefer the ease of legislating without the effort of submitting to parliamentary scrutiny.
Secondly, the government implies that it needs to use secondary legislation because of the volume of changes that it wants to make. This is also implausible. The government has already been able to pass new primary legislation to change inherited EU rules in areas where it had clear plans – such as in relation to the new immigration system and farm support regime. A bill setting out the UK’s new subsidy regime is currently in parliament. MPs haven’t always given the government an easy ride over these bills – parliament has had its say – but ministers can hardly say their efforts at post-Brexit reform have been stymied by parliament.
Watering down scrutiny is the opposite of parliament ‘taking back control’
The real impediment to greater reform has been the lack of a clear sense of what the government wants to do with its new-found freedoms. Since Brexit, ministers have often asserted that they wants to “reform, replace and repeal” EU law, but a recently published report titled “The Benefits of Brexit” set out very little by way of new, concrete proposals for change or of any legislative changes they would require. The need to avoid primary legislation – as a means to lighten the legislative load for parliament – is not evident.
Watering down scrutiny of substantive changes to rights and regulations simply because they originated during the UK’s membership of the EU – would be the opposite of parliament ‘taking back control.’ The government should not sideline parliament but accept the importance of making the case to MPs and peers for any significant policy changes it wants to see.