A discussion of the proposed 'Brexit Freedoms' Bill

In a press release on January 31st, the Prime Minister pledged a ‘Brexit Freedoms’ Bill to end the special status of EU law in the UK legal system and ‘make it easier to amend or remove outdated ‘retained EU law’’.[1] It claims that the Bill will cut £1 billion of red tape for UK businesses and ease regulatory burdens.[2] The statement comes amid criticism that the Government has not taken full advantage of Brexit.

Currently, EU law is afforded the status of primary legislation, and thus the pipeline of primary legislation required to reform it ‘would dominate the legislative agenda for several Parliaments, reducing the Government’s ability to deliver other domestic reforms’.[3] Therefore, the Government – as alluded to in the press release – intends to ‘create new “fast track” powers to provide an alternative way to reform’ and to accelerate the process, making changes by statutory instrument.[4] While this may sound attractive, this article will contend that the lack of detail in the Government’s approach at present is cause for concern. It is not clear which regulations in particular will be targeted by the Bill, for example, although the Government has outlined plans to inform the public ‘in due course’.[5]

The legal sector’s response to the press release has been particularly strong – after all, not knowing what direction the Government plans to take UK law in post-Brexit and which EU rules are set for amendment or removal puts lawyers in a difficult spot. The Law Society Gazette states that ‘lawyers are confronted with … an elaborate game of charades’, forced to deduce the Bill’s likely content and intended effect from the Government’s gestures.[6] The lack of indication of which regulations will be targeted by the Bill has also given rise to worries that the ‘red tape’ referenced by the Government could include rules on employee rights.[7]

Charles Brasted, partner in Hogan Lovells’ global regulatory practice, is quoted saying that although powers to amend by secondary legislation are not novel, ‘inevitably [they] raise concerns about the level of scrutiny they receive – and the impact that can have on the effectiveness, and potential unintended consequences, of these sorts of changes’.[8] Travers Smith concur: ‘Parliamentary scrutiny of statutory instruments is already widely regarded as inadequate … the Bill is likely to prompt further calls for reform in this area’.[9] This point is particularly interesting when bearing in mind some of the arguments the Government makes for the removal of retained EU laws. The press release contends that ‘[m]any EU laws kept on after Brexit were agreed as a messy compromise [and many did not] receive sufficient scrutiny in our democratic institutions’,[10] affirming the importance of laws receiving appropriate review. However, this argument falls short when confronted with the fact that the Government’s plan to accelerate the process of amending or removing legacy EU rules may well itself lead to a lack of scrutiny. This apparent ambivalence towards the scrutiny of laws is especially concerning in light of the Government’s proposed reforms of the courts’ powers of judicial review.

Not all are pessimistic about the potential changes, however. The Law Society Gazette reports Shearman & Sterling partner Barney Reynolds saying that the UK could design a system of financial regulation with ‘high standards, but fewer rules’;[11] this could be an alternative interpretation of the Government’s reference to cutting ‘red tape’. Brasted agrees, stating that ‘there are no doubt opportunities for improvement’, but ‘care will be required given the need for legal certainty and protection of existing rights’.[12]

The Government’s press release announcing the ‘Brexit Freedoms’ Bill therefore seems to have raised many concerns, particularly regarding which legacy EU rules are in the Government’s crosshairs and the level of scrutiny new or amended laws will receive. Existing concerns surrounding judicial and parliamentary scrutiny only serve to exacerbate this. However, it is true that there is scope for the Government to streamline and improve UK law with this Bill. Until a clearer picture of the Government’s plans appears, the public – particularly those working in the legal sector – will simply have to play the waiting game.

[1] Prime Minister’s Office, 10 Downing Street and the Rt Hon Boris Johnson MP, ‘Prime Minister pledges Brexit Freedoms Bill to cut EU red tape’ (gov.uk, 31 January 2022) <https://www.gov.uk/government/news/prime-minister-pledges-brexit-freedoms-bill-to-cut-eu-red-tape> accessed 22 February 2022

[2] ibid.

[3] Amera Dooley, ‘The Brexit Freedoms Bill and changing retained EU law’ (Clifford Chance, 16 February 2022) <https://www.cliffordchance.com/insights/resources/blogs/insurance-insights/the-brexit-freedoms-bill-and-changing-retained-eu-law.html> accessed 22 February 2022

[4] ibid.

[5] Prime Minister’s Office (n1).

[6] Eduardo Reyes, ‘News focus: Brexit Freedoms Bill – freedom from what?’ (The Law Society Gazette, 11 February 2022) <https://www.lawgazette.co.uk/news-focus/news-focus-brexit-freedoms-bill-freedom-from-what/5111560.article> accessed 22 February 2022

[7] ibid.

[8] ibid.

[9] Travers Smith, ‘The “Brexit Freedoms” Bill: what is it and why is it important? (Travers Smith, 2 February 2022) <https://www.traverssmith.com/knowledge/knowledge-container/the-brexit-freedoms-bill-what-is-it-and-why-is-it-important/> accessed 22 February 2022

[10] Prime Minister’s Office (n1).

[11] Reyes (n8).

[12] ibid.