Rosalind Stevens, Tom West and Marley Morris / Apr 2022
Over a year since the UK left the EU’s single market and customs union, there is still uncertainty over what changes the government plans to make with its newfound powers – or how it plans to make them. Despite the Prime Minister pledging in his New Year’s message to go “further and faster” to maximise the benefits of Brexit and bringing forward the so-called ‘Brexit Freedoms’ Bill, civil society is still in the dark about how the UK no longer being bound by EU law will affect the country.
To respond to this uncertain future, a new Civil Society Alliance has been launched with the aim of empowering civil society organisations across the UK to scrutinise and influence the constitutional, administrative, and legal changes following the UK’s withdrawal from the EU. To do so effectively, the Alliance argues that law making must be open, accountable and respect democratic processes, including those of devolved authorities. A core aspiration is to maintain – or preferably enhance – the regulatory standards that prevailed in the UK by virtue of its EU membership.
In its recent ‘Benefits of Brexit’ report, the government reiterated its commitment to setting high standards at home and globally post-Brexit. As part of the UK-EU Trade and Cooperation Agreement (TCA), the UK signed up to ‘level playing field’ provisions protecting workers’ rights and the environment. These included non-regression clauses, which prevent either side from reducing their levels of protection below the levels in place at the end of 2020, if this is done in a way which affects trade or investment between the UK and the EU.
At the same time the government has recently stepped up its plans to roll back EU laws. It is currently undertaking a review of both the status and substance of retained EU law. Broadly speaking this is the EU legislation transferred over or preserved on the UK’s statute book. Writing in the Sun, new Minister for Brexit Opportunities, Jacob Rees-Mogg, invited readers to write and tell him about “ANY petty old EU regulation that should be abolished” as part of the government’s deregulatory agenda.
The indications are that the new Brexit Freedoms Bill will give the government greater scope to change retained EU law through delegated legislation, making it easier to revise, weaken or remove domestic standards without proper parliamentary oversight.
This is of particular importance amid growing concerns about the government’s use of delegated legislation. This legislation – which is made by ministers under powers in Acts of Parliament – has been the principal legislative vehicle for delivering the government’s agenda on critical policy areas. Recent Acts of Parliament on agriculture, fisheries, customs, and immigration have contained wide-ranging delegated powers for ministers. Delegated legislation may also be an essential vehicle for delivering policy in emerging fields such as AI, drones, driverless cars, and lab-grown meat.
As the Hansard Society has argued, the current approach to delegated legislation needs a major rethink. The powers given to Ministers to make delegated legislation are frequently too broad. Too much primary legislation comes in the form of ‘skeleton’ bills, which contain powers rather than policy and so cannot be properly scrutinised by Parliament. This has resulted in a blurring of the boundary between what should go in primary legislation and what should go in delegated legislation, as well as a ‘ratchet’ effect that makes it politically easier for the government to argue in favour of taking similar powers in subsequent bills. Moreover, these concerns are exacerbated by the underpowered and underused mechanisms for parliamentary oversight of delegated legislation: MPs do not have the tools they need to properly hold the government to account and to make sure that policy decisions are well-evidenced, widely supported and deliver benefits now and into the future.
It is therefore critical that, as the government develops its plans for diverging from EU law, there is effective scrutiny to ensure that post-Brexit reforms are delivered through a fair and open process. Only then will civil society be able to hold the government to its commitment to maintain core rights and standards.