The risks of doing away with EU law

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When the government of Boris Johnson announced the next phase of its search for a “freedom” dividend from Brexit, the item that hogged the headlines was a trivial pledge to restore the Crown Stamp on pint pots across the land, and allow market traders to sell their wares in pounds and ounces if they chose.

This was no doubt just as the government’s media managers intended. Nigel Farage’s “delight” was eclipsed only by the jubilation of the Brexit-supporting press, with both the Express and The Telegraph trumpeting that Johnson had scored a “new Brexit triumph” thanks to a “bonfire of EU rules”.

But while Remainers on Twitter joked about switching to “pecks, perches and furlongs” and rolled their collective eyes at the apparent paucity of Brexiter ambition, Lord David Frost’s statement in the House of Lords contained a potentially much more serious and sweeping policy announcement that has raised concerns in the legal fraternity.

As well as producing a list of potential regulatory dividends — some of which, such as data reform and medical devices, Brexit Briefing has tackled in recent issues — Frost set out plans to conduct a review of “retained EU law”, with a view ultimately to doing away with it.

This relates to that vast body of EU legislation and directives that was converted into UK law “en bloc” via the EU (Withdrawal) Act of 2018 in order to preserve legal continuity.

The act, which came into force on January 1, acted like a giant legal vacuum cleaner, sucking up EU law and depositing it on the UK statute books.

But now we have left the EU, explains Catherine Barnard, professor of EU law at Cambridge university, there is nothing to stop the British government from passing legislation to supersede any amount of “retained” EU law that it now no longer wishes to be bound by.

So for example, if the UK government wanted to do away with the EU-derived working time regulations or, say, airline passenger compensation rules, it can do so by passing legislation to that effect. That is the point of Brexit. So far, so simple.

The second part of Frost’s announcement was slightly more controversial. Frost also indicated that he wished to end the “special status” that retained EU law had been granted in the 2018 Act that gave it supremacy over UK law in the event that pre-Brexit UK legislation and EU rules clashed.

Frost explained that he wanted to remove the risk of “giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament”.

This, again, would seem at first blush to be in the spirit of Brexit. It was always slightly surprising, observes Barnard, that a pro-Brexit government had agreed to the supremacy in the first place, but EU laws were given special status for a very good reason.

This was to preserve the status quo for laws passed before January 1 2021, when EU law did indeed have supremacy. By preserving that relationship, lawyers were able to advise with confidence on pre-existing law.

Legal practitioners such as George Peretz QC warn that Frost’s proposal to mess around with the relationship between that pre-Brexit law could have uncertain and unpredictable consequences. “It is not a good idea,” he says.

And, as Barnard adds, given that the 2018 Act only came into force nine months ago, it does beg the question as to why the government wants to risk creating fresh uncertainty by upending a piece of legislation that was intended to create certainty in the first place.

However, it is the third element of Frost’s proposals that has really rung alarm bells among the legal fraternity: this is a pledge to create some form of fast-track mechanism to strip away EU law when it suits the government.

To quote Frost in full: “We will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law — in a way which reflects the fact that, as I have made clear, laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the government of this country.”

Leave aside whether EU laws are “intrinsically less democratic” than UK laws (given that previous elected UK governments and British MEPs had a full hand in their creation) the legal fraternity warns that a “guillotine” mechanism of the kind that Frost appears to be proposing itself risks being very undemocratic.

Details of the government’s proposals are still to be seen, but on the face of it there are clear grounds for concern, says Jonathan Jones QC, the former Treasury solicitor who quit last year over government plans to overwrite parts of the Northern Ireland Protocol and is now at Linklaters, the law firm.

Since the government is perfectly entitled to repeal or amend EU law via ordinary legislation, seeking to build a “fast track” process logically implies a mechanism with lower levels of parliamentary scrutiny.

As Jones observes: “If this body of retained EU law lacks democratic accountability, because it comes from the EU, it would seem ironic if the government’s process for sorting all this out is a procedure that fast-tracks or even sidesteps democratic scrutiny in the UK.”

Peretz was blunter still, saying that Frost’s statement looked to be a thinly disguised plan to “alter swaths of important law by ministerial flick of the pen and with no adequate debate or scrutiny”.

On this, we will have to see. It might perhaps be arguable that a fast track mechanism is required purely from a “housekeeping” point of view, given the volume of laws we are talking about, but Jones is not convinced.

Indeed, it was the volume of law and the time pressure imposed by Brexit deadlines that justified the decision to dump so much EU law on to the UK statute book in the first place. But after Brexit those constraints do not apply.

As the UK looks to amend laws in key areas, such as health and safety, data management, fisheries and the environment, a UK parliament — newly freed from accepting diktat from Brussels, as Brexiters see it — would surely expect the right to exert maximum democratic scrutiny, says Jones.

Barnard agrees, and hazards a guess that the European Commission will be keeping a very close eye on what happens next, precisely because such a mechanism would make it very difficult to keep track of where the UK was diverging from retained EU law.

“It would appear to be creating an important way for the UK to diverge, quickly, without full parliamentary scrutiny. It could make it very hard to identify where there is divergence,” she says.

We will now have to wait and see what happens next. It is possible that, in practice, parliament will simply not have the time and appetite to legislate for such a guillotine, and this will remain just another piece of “performative divergence”.

But if Frost is successful, it would indeed be ironic that Brexit, sold as an exercise in restoring democratic accountability, should have the opposite effect.

Do you work in an industry that has been affected by the UK’s departure from the EU single market and customs union? If so, how is the change hurting — or even benefiting — you and your business? Please keep your feedback coming to [email protected].

Brexit in numbers

One of the government’s pledges, when it introduced its “points-based” immigration system, was to increase wages and productivity in the UK economy.

The idea is that by crimping low-wage sectors that grew disproportionately in the free movement era, companies would be forced to automate, adapt and pay higher wages to British workers.

The early and somewhat bitter fruits of this policy, if you’ll excuse the pun, are reported this week by my colleague Judith Evans, who tells how UK fruit and veg growers are scaling back plans for next year’s planting because they cannot obtain workers to pick crops.

Agricultural labour is part of a “seasonal” worker programme, but recruiters such as Justin Emery, director at Fruitful Jobs — one of four labour agencies able to bring in workers under the scheme — say they already do not have enough placements for 2022.

Emery estimates that edible horticulture alone needs 50,000 to 60,000 workers each harvest, but as the chart above shows, visa issuance falls way short of this — and that’s before we even start talking about sectors such as the poultry industry, which is not part of the scheme. It was only allowed 30,000 places in 2021.

The result will be lower UK output and higher food imports, which might not be good for either the planet or the weekly shopping bill, but it is clearly in line with the promise made by the government’s policy.

Given that there is little evidence UK workers want jobs picking crops, time will tell whether the local communities will be content to trade the absence of large influxes of foreign workers in exchange for higher prices and their local farmers lowering their output.

And, finally, three unmissable Brexit stories

Joe Biden delivered a warning to Boris Johnson over the post-Brexit settlement in Northern Ireland when the two leaders met this week in Washington. The US president said he felt “very strongly” that any change to the “Irish accords” would undo peace efforts and could result in “a closed border”. Biden has previously warned there would be no chance of a UK-US trade deal if Brexit undermined the Northern Ireland peace process.

The fallout from the Aukus security pact continues to reverberate around western capitals. The rift between Paris and Washington has not seemed as wide since France and Germany opposed the US-led war in Iraq in 2003, says our editorial board. Then, it was the US that felt let down by its allies, it points out. France and the US need to restore trust, it says, but the French and the British must also patch up relations. Emmanuel Macron and Johnson need to work with each other to fulfil their ambitions, the board argues.

The German federal elections are on Sunday and rarely has such a crucial democratic exercise been tinged by so much uncertainty, says our Berlin bureau chief Guy Chazan. In this big read he looks at how Chancellor Angela Merkel’s exit from German politics will usher in a new, more uncertain era of coalition-building in Europe’s economic powerhouse.

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