Sunset clauses and statutory instruments: How Brexit is allowing the UK to be redrawn…

Whilst there is a lot of attention on the Protocol on Ireland/Northern Ireland as a source of tension and complexity in intra-UK relations, a far more consequential effect of Brexit is coming into view – one which will irrevocably change the constitution of the UK.

Extraction of the UK from the EU was never going to be a straightforward case of divorce – it was to provoke a fundamental remodelling of the UK state. We are still in the early days of this process, but the consequences are becoming clear. Much relates to how the British Government is choosing to interpret the Brexit mandate; the ambition of the project becomes greater as the benefits become more doubtful.

There are two pieces of legislation being considered by Westminster at the moment that demonstrate this logic at work.

The first is the Northern Ireland Protocol Bill – currently at report stage in the House of Lords. This is an extraordinary piece of legislation in that it endeavours to deliberately equip the UK Government to not fulfil its international obligations, i.e. to take unilateral action to breach the Protocol. Both sides claim to hope that the newly-recommenced talks between the UK and EU could give rise to jointly-agreed solutions to some of the difficulties surrounding the implementation of the Protocol.

In the meantime, the Bill continues to progress, as the ‘insurance policy’ if such talks fail. But this Bill is about far more than the Protocol and the concerns of Northern Ireland’s population. The Bill gives almost unlimited powers to government ministers to create legislation as they see “appropriate” in place of provisions previously covered by the Protocol. It also enables Ministers to “engage in conduct” relevant to the Northern Ireland Protocol (which includes areas covering human rights and equality protection as well as trade and goods regulation) without any parliamentary oversight.

The second piece of legislation is the Retained EU Law (Revocation and Reform) Bill – gaily known in the British media as the “Brexit Freedoms Bill”. If the NI Protocol Bill is eye-watering in its consequences for UK-EU relations, this Bill is heart-stopping for anyone concerned for the basic functioning of liberal democracy in the UK.

Recognising the complex integration of EU law in the UK after nearly 50 years of membership, the UK Parliament converted EU law into domestic law in bulk to enable necessary continuity after exit day. Many concerns were raised at the time about the lack of scrutiny in this process, but at the same time, the urgency of the task was not in dispute. Some 2,400 pieces of legislation were thus ‘copied and pasted’ into UK law across 21 government departments. The largest amount of these are under the remit of the Department of Environment, Farming and Rural Affairs – reflecting the importance of EU law in this area.

Now the UK Government is proposing legislation that will bring an automatic sunset clause to all that legislation of 31 December 2023. Indeed, it is not just retained EU law that will be automatically expunged but also all EU-derived domestic legislation, i.e. that created to give legal effect to EU law when the UK was a member. This means legislation relating to everything from food safety and consumer protection to building regulations and employment rights.

The Bill will see officials tasked with deciding which pieces of legislation to recommend to ministers to be repealed, which should be amended, and which should be replaced. To be exempted from automatic exclusion on 1 January 2024, a piece of legislation has to be identified by a minister as needing to be retained. But even then, the stay of execution has an end date: 23 June 2026, quite poetically, the tenth anniversary of the Brexit referendum.

As with the NI Protocol Bill, and too much other Brexit-related legislation in the UK, the REUL Bill sees a major transfer of powers from the legislature to the Executive. Furthermore, this Bill looks set to be another means by which the UK Government takes further power to itself and away from the legislatures in Scotland, Wales and Northern Ireland, as well as Westminster.

Now we face the prospect first of gaps in key areas of regulation – such as environmental protection – appearing automatically in just over a year’s time. And then there is the prospect of UK Government Ministers replacing such regulations with others as they see appropriate. These regulations will not be subject to consultation, debates, close scrutiny or votes of elected members of parliament. In fact, in most cases, we will most likely find out about them after the event.

This is not just a concern to people in the UK. The scale of this automatic expunging of EU-derived and retained law in the UK means that the basis on which the Withdrawal Agreement and Trade and Cooperation Agreement (TCA) were negotiated needs to be reconsidered. And the possibility of other Minister-led adjustments to rights and protections, e.g. around data protection or workers’ rights, has ramifications for other baseline assumptions behind the TCA negotiations.

This all seems very uncertain ground but one thing is clear: Brexit means far more than Brexit. The United Kingdom is in the process of being completely redrawn, and not by grand visions or policy tools but by sunset clauses and statutory instruments.

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