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.