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regulatory alignment

On 31 January 2020, the UK left the EU and, in the words of the 2018 White Paper on the Future
Relationship, ‘took back control of its money, laws and borders’. Under the terms of the EU (Withdrawal) Act 2018 (EUWA) the European Communities Act 1972 (ECA) was repealed on exit day, thereby ending the supremacy of EU law in the UK.

The EUWA avoided a regulatory cliff-edge by domesticating EU law, as far as possible, into UK law – into a category known as ‘retained EU law’. But, significantly, at least in the longer term, UK courts will exclusively interpret and apply retained EU law.

Nonetheless, formal exit from the EU does not mean an immediate end to the regulatory effect of EU law within the UK, due to the transition period – and after that, it opens up difficult political questions about the extent of future UK-EU regulatory alignment.

The Conservative Party election slogan – ‘Get Brexit Done’ – oversimplifies the Brexit process and its legal consequences. Brexit may be ‘done’ to the extent that UK has formally left the EU institutions, but the influence and reach of EU law in the UK did not end on 31 January 2020 – and it may have a lasting influence long after that.

During the transition period (currently set to end on 31 December 2020), EU law continues to have
supremacy. Section 1 of the EU (Withdrawal Agreement) Act 2020 (WAA), which gives effect to the
Withdrawal Agreement in UK law, effects this by reviving certain provisions of the ECA.

So until the transition period ends, the UK will be fully bound by all EU laws ‘as if it were a member state’, must implement all new EU laws into UK law, and remains subject to the jurisdiction of the Court of Justice of the European Union.

However, once the transition period ends those obligations will lapse, leaving Parliament free to repeal or amend retained EU law. This opens up the possibility of UK divergence from EU regulatory standards – for example, in UK employment, environment or consumer law.

UK and EU law have undergone substantial cross-fertilisation during EU membership, and general principles integral to single market governance, such as proportionality, have impacted domestic law and practice.

This is reflected in the regulatory solution offered by the EUWA and WAA: Schedule 1 of the EUWA retains these general principles of EU law and provides that they remain relevant in the interpretation of retained EU law by UK courts.

Hence, these Acts entrench what could be described as an ‘Europeanised’ regulatory framework into UK law for the foreseeable future, albeit with possibility of amendment by the UK Parliament.

Crucially, neither the EUWA nor WAA defines the regulatory framework for the future UK-EU relationship. The legislation enables, but does not prescribe, changes to retained EU law; post-transition, any changes will ultimately be a political choice for government and Parliament.

This choice will be materially influenced not only by domestic political concerns, but also by the depth and obligations of the future UK-EU relationship.

Beyond transition, the regulatory framework of the future UK-EU relationship thus remains uncertain. The key question is to what extent the UK will have to maintain exit-day regulatory standards of retained EU law (and keep pace with future EU laws) in return for single market access.

This will mean difficult decisions for both government and Parliament, including for example whether to adopt a common rulebook as part of the future trade relationship, which could make Parliament a perpetual ‘rule taker’ of EU laws.

In contrast, a Canada-style free trade agreement may not formally require more than minimal regulatory alignment with EU laws and would therefore maximise regulatory sovereignty, but regulatory divergence would almost certainly come at the expense of single market access.

The imperative for single market access – for example, in the form of just-in-time supply chains – suggests that even under a Canada-style agreement Parliament would have good reasons not to depart rapidly from the regulatory framework and standards within retained EU law.

But, as Lisa James’ contribution emphasises, Parliament will have little formal influence over the executive in the future relationship negotiations.

Legally, ‘taking back control’ suggests that only laws passed by the UK Parliament and enforced solely by UK courts will be applicable in the UK. The trade-offs entailed in the various options for the future relationship show that a diverse range of economic and political factors will influence regulatory choices for both government and Parliament.

As Philip Lynch argues in his contribution, Conservative MPs, elected in so-called ‘Red Wall’ seats in 2019, may yet face difficult decisions between constituency and party demands when it comes to the future relationship.

Because the government has refused to extend the transition period, these choices will also need to be confronted soon: the UK avoided a regulatory cliff-edge no-deal Brexit on exit day, but a regulatory cliffedge caused by the failure to agree a future trade relationship by the end of the transition period would not be much different in its effects. Hence, Parliament should take this prospect equally seriously.

Despite the difficulty of determining the depth and scope of the future relationship, the challenges of passing Brexit-related legislation will be minimal compared to in the 2017-19 Parliament: as discussed in the contribution by Jill Rutter and Joe Owen, given the government’s large parliamentary majority, it is likely to secure its aims.

Yet, in taking back regulatory sovereignty, Parliament must also be conscious that in the course of exercising that sovereignty it will assume sole political responsibility for its decisions.

In this sense, taking back control should also mean that, in future, MPs blaming Brussels for the regulatory consequences of laws voluntarily adopted or rejected by Parliament will no longer be an option.

By Professor Adam Cygan, Research Leader at The UK in Changing Europe and Principal Investigator on the ESRC Parties, Parliament and the Brexit Process – Election 2019 project. This piece forms part of our Parliament and Brexit report 

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