The UK’s Post-Brexit Review of ‘Retained EU Law’ Risks Undermining Democracy

Yves here. During the very protracted Brexit negotiations, we pointed out how deeply integrated UK law had become with EU law, which among other things made the shrillness over escaping the jurisdiction of the presumed-perfidious European Court of Justice seem to be putting the cart before the horse. Pundits pointed out that disentangling UK statues from EU law could not be done by any sort of cut and paste procedure, it would be a mammoth, bespoke operation.

Oddly that issue disappeared from the radar. It’s now back, and not in a good way.

By George Peretz, a queen’s counsel in England and Wales and barrister-at-law in Ireland. His practice covers a wide range of public law, regulatory and tax issues, with particular strengths in competition and state aid, pharmaceuticals, VAT and customs/trade remedies, and agriculture. He has argued a number of major cases in the Supreme Court, Court of Appeal, European Court of Justice and General Court and regularly leads in the senior English courts. He is also a director of openDemocracy. Views expressed in openDemocracy are his own, not those of his chambers.Originally published at openDemocracy

Tucked away on page 33 of the government’s ‘Benefits of Brexit’ report,published on Monday, are two proposals whose consequences could be anti-democratic and destabilising to the UK. They claim to offer a solution to the complex problem of disentangling domestic law from EU law, but their likely effect will be to hand unaccountable power to ministers and to introduce chaos to our legal system.

During the Brexit debate, neither side wanted to dwell on how integrated UK law had become with EU law. Brexiters didn’t want the process of leaving to seem anything other than simple and straightforward, while Remainers were unwilling to be frank about the extent to which EU rules had become so enmeshed in the law governing our daily lives. This was often in technical areas, but also in areas of great day-to-day importance, such as environmental protection, consumer law, employment rights and health and safety.

The process of disentangling these laws was always going to be complicated, demanding a huge amount of governmental and parliamentary time. When Brexit finally happened, the plan at first was to avoid the problem where possible. Apart from in key areas such as the rights of free movement, the EU Withdrawal Act 2018 aimed to keep hold of much EU law, making only those changes that were needed for it to operate in the UK – such as transferring the powers of EU regulators to domestic ones.

The body of law that was kept is known as ‘retained EU law’. It has a special status in the UK legal system, to ensure that transplanted EU texts – regulations, for instance – have the same meaning and effect as they did before Brexit. Its relationship with UK laws, such as which law takes priority in any given situation, was also supposed to remain the same.

The current government now wants to review the operation of retained EU law. Its first proposal states that since much retained law contains “technical detail”, it’s not worth using primary legislation to amend it. ‘Primary legislation’ means Acts of Parliament that are debated, examined and voted on before being passed – in other words, laws that have been given proper democratic scrutiny. Yet the report assures us that because Parliament “has so many substantial policy questions to consider” – a phrase that should have everyone counting their spoons – “the government considers it not a good use of finite parliamentary time to require primary legislation to amend all of these rules”.

Instead, the report suggests a “targeted power” that “would 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”. We are, somewhat coyly, not told who would exercise the ‘targeted power’, but you win no prizes for guessing that the answer is ministers. At their disposal is secondary legislation, a way of making laws without having them exposed to significant Parliamentary scrutiny. Secondary legislation plays a useful role in making the detailed technical rules that are necessary to implement policy set out in primary legislation. But recent governments – especially the current one, with its hostility to scrutiny and challenge – have used it to make huge policy changes without any proper discussion in Parliament.

Despite the report’s smooth assurance that the government will “work with Parliament on how to frame such a power and ensure its use has the appropriate levels of parliamentary scrutiny”, the reality is that once the power is handed over ministers will largely be able to do as they please. AsLord Anderson QC explains, “few people outside Parliament realise how little control we have over secondary legislation: we cannot either amend nor (in practice) block it”.

Since one person’s ‘technical detail’ is someone else’s important right or protection, it is hard to be confident that any power will not be used to fast-track important changes without scrutiny. Conservative MPs who are thinking of supporting these proposals might care to reflect that recent experience of law-making without parliamentary oversight has not been entirely happy, especially for those MPs with concerns about COVID legislation. What’s more, powers handed over by Parliament to ministers today might well be in the hands of Labour in two years’ time.

Quite apart from the anti-democratic nature of the proposals, it is also hard to believe that they are needed. Good regulation in ‘technical’ areas takes time to design and stress-test – especially if the idea is to replace such complex architecture as EU legislation on medicines or product safety. The idea that complex regulation can swiftly be rewritten if only Parliament could be got out of the way is refuted by previous attempts to cut ‘red tape’ by cutting legislative corners, which have always foundered on reality. Indeed, the government has barely used the powers it already has under the Medicines and Medical Devices Act 2021 to rewrite retained EU medicines law.

The second proposal is harder to understand but also concerning. The report states that it wants to “remove the continued effect of supremacy of EU law over domestic law which was made before the end of the transition period”. The proposal is to fiddle around – in a way yet to be defined – with the current arrangement that retained EU law keeps its place in the ‘hierarchy’, or order of priority, of legislation.

At the moment, retained EU law is supposed to remain valid even if it conflicts with a later Act of Parliament that was passed before the UK left the EU. This is an exception to the convention that older laws are treated as repealed if they are inconsistent with newer ones. But it reflects the position that such law held when we were in the EU, and is hence an attempt to preserve the status quo. The problem is that no one really knows what the consequences would be of fiddling around with the current arrangement, and the resulting uncertainty is likely to benefit no one apart from lawyers.

The report appears to acknowledge this problem by stressing the need for “legal certainty”. But the apparently cheap gesture of removing or downgrading supposedly ‘foreign’ bits of our law may have a considerable cost if it means our law becomes uncertain and unpredictable.

As it stands, these proposals breach the fundamental principle – applicable to legislators as much as doctors – of ‘first, do no harm’. The proposal that Parliament surrender yet more of its powers to ministers risks further harming our democracy, and the proposal to fiddle around with retained EU law for no better reason than its origin risks undermining large parts of our law.

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  1. Larry

    Rather nicely exposes the intentions of the powerful interests that backed and promoted Brexit. England needs to make it’s own rules, sure. But now those rules will be made by unaccountable bureaucrats in England as opposed to Brussels. Is that the promise of Brexit?

    1. Synoia

      Britain is a Monarchy, with the monarch’s powers delegated to the Prime Minister and parliament.

      The people vote for a politician, beholden to his party.

      What is the this “Democracy” of which you refer? /s

      The system is sometimes referred to as “Dictatorship by Parliament.” I believe that to misses the point. The ruling party’s leader gets what he or she wants, through the whipping system of collecting votes.

  2. R

    Pearl clutching!

    We left the EU. We retained the laws pro tem because it will take time to rummage through them.

    I agree with the author that it should be done through primary legislation but that applies to UK domestic law too, which has also been usurped by great rafts of secondary legislation. But he is not calling for constitutional reform, just scolding the Brexiters for their carelessness. Well, tell us something new!

    They broke his EU toy and we don’t care, can we now get on with a building a better UK rather than whining? His is the worst kind of lawyerliness, delighting in potential problems rather than offering any solutions.

    What does he concretely propose we should do, other than nothing…?

    1. TimH

      If you think that “building a better UK” will work well in a secret, unaccountable manner by unelected ministers… then you are likely one of the 0.001% that it will benefit.

      Same ministers that have stopped FOIA on the tainted blood scandal, are privatising NHS behind the scenes and selling off patient data, and continue to stymie any redress over Grenfell.

      1. R

        I don’t. I think we need to ban secondary legislation and insist Parliament scrutinises everything.

        Moreover, ECJ supremacy was an invention of the ECJ. It is not in the founding or UK admission treaties. It was wholly undemocratic in its expounding by Strasbourg / Luxembourg and the German constitution and others explicitly give supremacy to their own courts and have not accepted the ECJ de jure, even if de facto they have avoided / finessed the fight.

        But this article is not really about the constitutional niceties. Look at the way the overriding principle that no Parliament can bind its successor is downplayed by the author as a convention, who then dismisses it as something necessary to ignore for the great EU project and warns the UK off touching it on a non-constitutional and anti-democratic principle of “first do no harm” . Well the EU project is dead so why should Parliament not repair its convention?

    2. c_heale

      I wanted to stay in the EU, for the simple reason that the UK would immediately revert to the corrupt old boy network that runs the place, without being stymied by the EU. And it has. Btw I hold no candle for the EU since it is run according to a neo-liberal ethos.

  3. David

    OK, a little context for what reads to me like an early draft of an argument that the author will be using in Court before too long.

    First, in what is known as the “Westminster” parliamentary system, where the leader of the majority party or coalition is appointed Prime Minister, the Executive effectively controls Parliament anyway, by definition. Whilst defeats over legislation do happen, they are quite rare. In certain cases, government MPs may vote against a law, but, unless the government has a very small minority, this seldom matters very much. And persistent rebels often find themselves ostracised and not offered the best jobs. When you add to this that there are seldom more than a handful of MPs in the Chamber for most legislation, and that all of the detailed discussion takes place in Committees whose activities are seldom reported, the idea of “laws that have been given proper democratic scrutiny” its always a bit of a joke. With a decent majority, as Johnson currently has, the government can largely “do as it likes” anyway.

    Second, and much more than most people realise, subordinate legislation has been a feature of law-making for decades now. Acts of Parliament often contain statements like “the Secretary of State may make regulations under this Clause” or something similar. That said, attempts to puss the envelope have been resisted: the regulations shouldn’t involve anything more than the detailed application of the primary legislation, and there can be, and I think have been, successful legal challenges on this point. But the reality is that the mass of detailed legislation today can’t possible be processed by Parliament, and, as I’ve already seen only a very small proportion takes place on the floor of the House anyway. Much as the author of the article might like to see it (and much as it might be a good idea in principle) detailed scrutiny of changes to subordinate legislation which never had any scrutiny in the first place isn’t going to be possible.

    The problem is a real one, and should have been taken into account at a much earlier stage: in that the author is quite right. And it is of course true that nobody should trust this government further than they can throw it, so it’s quite likely that Johnson will try to cut corners. That’s always going to be a temptation when you have a Westminster-style system. But I think there are a couple of other things behind this article. One is that Remainers (as I have a shrewd suspicion the author might be) were always seeking to downplay the influence of Brussels on UK laws. Repealing them now, and doing so in a selective blaze of publicity, can only strengthen Johnson’s position because it will enable him to festinate governments which “gave away” power to Brussels. More importantly, perhaps, this article is part of the general offensive by lawyers to get more influence and control over government and legislation, which has been going on for a generation now. This process was greatly aided by EU membership, and now risks going into decline with Brexit. The problem is, of course, that no-one elects lawyers and judges

    1. R

      Exactly this!

      I disagree about the volume of legislation requiring scrutiny though. More quality and less quantity of laws from Westminster would be a good thing. There are three great areas of policy tinkering:
      – criminal and immigration law: a reactionary hodgepodge
      – tax and financial services: a technocratic labyrinth, designed to trap the unwary but hiding secret tunnels to escape for the wealthy
      – environment / net zero etc: magical thinking

      A lot of recent criminal legislation is misguided or dangerous and, with a written constitution and bill or rights, would never have seen the light of day. Roll on the Harrogate Convention. On tax, a radical tax simplification would consign THOUSANDS of pages of legislation to the bonfire. On the environment, we could at least save some trees, even if there is not much else to be done.

  4. Synoia


    Democracy is impossible, because it is too complicated to read and discuss all the rules.

    Thanks for confirming that. Dictatorship by the Civil Service (aka Blob) and Special Interests (The Money) will continue.

    I always thought that claims of being a democracy and accountable to the Public were arrant Nonsense.

  5. Mike C

    Thank you for this article which describes how Johnson’s (however long he lasts) Government intends to achieve its Nirvana of “Singapore on Thames”, a haven for exploitation where we as citizens, consumers and workers have no rights and the natural environment is just a resource to be milked and trashed for profit.

  6. Dave in Austin

    Responding to the excellent response by David:

    This is an excellent summation of what has happened also in ther US. Few laws are passed and they are vague. They delegate what is Constitutionally in our country the sole right of Congress to pass laws on to executive agencies and sometimes private bodies which ofter don’t publish the “regulations”, “administrative rules”, “policy guidances”, “pre-clearences”, “private rulings” (for tax payers) or “cases which serve as precedents”. So nobody outside the ruling bodies and their friends in DC can have any idea what is going on and what the so-called “laws” are. And laws they are, because you can be fined or sent to jail because of them.

    Brexit is a special case only insofar as it is the rare case where the Siamese Twins are seperated in public and everyone gets to see- and feel- the network of secret law that bound them together.

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