The “Brexit Freedoms Bill” and a renewed regulatory framework

The Government has recently signalled that its future legislative programme will include a “Brexit Freedoms Bill”.

The policy paper underpinning the announcement confirms the Government intends to implement a “renewed regulatory framework”.  It is also undertaking a review of the many European Union-derived laws that were retained in the UK post-Brexit through the statutory framework established under the European Union (Withdrawal) Act 2018.  The review will include an “authoritative assessment of where retained EU law is concentrated on the statute book and across sectors of our economy. Once all retained EU law has been categorised, [the Government] will make this catalogue public and any subsequent changes to retained EU law accessible”.

The Government confirms that it will bring forward new legislation that is likely to include measures that will support Government plans:

• to “make it easier to amend or remove outdated ‘retained EU law’” through secondary legislation;
• “looking at how to remove the continued effect of supremacy of EU law over domestic law which was made before the end of the transition period”;
• to consider “how other features of retained EU law should be treated in the future. This includes whether we should retain directly effective EU rights that overlap with existing domestic law rights; the extent to which domestic courts should follow historic decisions of the EU courts; the role of the general principles of EU law in relation to retained EU law; and how to remove retained EU law where it is declared invalid by the EU courts.”

The Government also indicates that a different approach may be appropriate in some instances – for example it is consulting separately on various changes and repeal of EU-derived legislation relating to financial services.  It also intends to publish a response to its consultation on data protection changes this Spring, ahead of legislative reform of UK data protection laws which are largely based on EU law.

Some commentators have expressed concern that the Government’s proposed approach to use secondary legislation to repeal or amend retained EU law risks limiting the role of Parliament in scrutinising changes.  It remains to be seen how such legislation will be drafted and what practical effect it might have on UK laws and the complex legal framework established during the Brexit process to ensure the UK retained a functioning statute book following its departure from the European Union.