The "Brexit Freedoms" Bill: what is it and why is it important?

What's the plan?

Alongside a review of retained EU law intended to identify areas to prioritise for reform, the Government is also proposing to make it easier to change retained EU law through a "Brexit Freedoms" Bill which may contain the following measures:

• Fast-track procedure for changing retained EU law:  the Government is considering new "fast track" powers to change retained EU law without the need for primary legislation and with only limited Parliamentary scrutiny (because the powers would probably allow changes to be made by statutory instrument). If these proposals are pursued, a key issue (besides the level of Parliamentary scrutiny) will be how far Government is required to conduct a public consultation on draft legislation before proceeding with a change. Similar powers may also be used to provide a mechanism for removing retained EU law where it is declared invalid by the EU courts.
  
  
• "Downgrading" the principle of supremacy:  the general rule at present is that retained EU legislation takes precedence, in the event of a conflict, over existing UK legislation on the same subject matter (i.e. UK legislation in force prior to 11 pm on 31 December 2020). This was intended to promote certainty. Nevertheless, the Government is proposing to revisit the principle of supremacy in respect of retained EU law. It has also stated that it will review "the role of general principles of EU law in relation to retained EU law" (these include principles such as proportionality, non-retroactivity, equivalence and effectiveness).
  
  
• Changing the approach to retained EU case law: the Government is also considering "the extent to which domestic courts should follow historic decisions of the EU courts". The current position is broadly that only CJEU judgments up to 31 December 2020 remain binding on the UK courts, but the Supreme Court and the Court of Appeal (together with courts at the same level as the latter) may decide to diverge from them (for more detail, see this briefing). If the ability to diverge were to be extended to lower courts, the Government would be revisiting the decision reached as recently as late 2020 that the benefits of doing so would be outweighed by the negative impact on legal certainty.

Timing and comment

At the time of writing, the timing of both the review of retained EU law and the any Bill to implement these reforms was unclear – but until the Bill has been passed and brought into force (which is likely to take at least a year, if not longer), the position as regards retained EU law is expected to remain as set out in our detailed Q&A.    

Parliamentary scrutiny of statutory instruments is already widely regarded as inadequate – and the Bill is likely to prompt further calls for reform in this area. Concerns are also likely to be raised that some suggested changes (such as allowing lower courts to depart from retained EU case law) may have unintended effects, such as encouraging parties to litigation to raise points relating to retained EU law as a tactic in order to cause delay or increase the other side's costs. More generally, even with a fast-track procedure, changing the law takes time; in particular, there is usually an expectation that a public consultation will take place and Parliamentary Counsel needs time to draft the revised legislation. The sheer volume of retained EU law means that Government will need to consider very carefully which areas it prioritises for reform; it is to be hoped that it will focus on those with maximum benefit for the economy. 

Finally, the "Brexit Freedoms" Bill also forms part of a broader plan to cut £1 billion in red tape. However, there are relatively few "quick wins" or areas where the Government could simply remove all regulation;  this is likely to make the £1 billion target challenging to achieve in practice, especially given the UK Government's ambition to be seen as "setting high standards at home and globally" (for more discussion of the Government's approach to regulatory reform, see this briefing).