One of the central claims of the Brexit campaign was that Britain would “take back control” of its laws. Although the UK had been a leading force in European law-making for decades, when these changes were reported back in the UK, they were often presented as unfair burdens imposed by foreigners.
Not a lot has happened
We were told that Brexit would free us to do bold imaginative things which were being blocked by Eurocrats. But in the three years since Brexit was “done”, the picture is both more complex and more modest. The UK in a Changing Europe research centre comments,
“Divergence is a piecemeal process: long after the decision to diverge is made, the government is still having to develop policy and programmes to manage the consequences which only slowly become apparent.”
One reason for slow progress, is that nobody had explained clearly what new things we were going to do. It was only in the spring of 2022 that the government published its “Benefits of Brexit” paper. This identified a modest range of changes, many of which could have been implemented while in the EU.
A second reason for slow progress is that nobody knows how many European laws and regulations there are. For 46 years, there was no need to log every EU law and regulation since they were simply our laws and regulations. It is only now becoming clear that the total is over 4,000.
To avoid legal chaos, the UK agreed that on Brexit day, most EU laws and regulations would continue to be treated as UK law, while plans were made to replace or modify them. As we explained last month, the government’s UK Retained Law (Revocation and Reform) Bill provides that all EU laws would cease to exist on 1 January 2024, unless a Minister decides otherwise. However, is it possible that the House of Lords will attempt to delay this.
But so far, only around 120 of these have been changed, and even some of those changes are at present only consultations.
What has changed?
The UK in a Changing Europe research centre has been monitoring the changes, which have taken place since Brexit day. In five reports they have identified 71 ‘active’ changes, where the UK has diverged from EU law; 36 ‘passive‘ changes, where the UK has not followed EU changes; and 16 ’procedural‘ changes, where the UK has had to create new institutions and systems to replace EU ones.
Some changes require legislation, while others can be done by Ministerial decision. Others are political – where one party is retaliating for a perceived breach of existing agreements.
Many of the changes which have happened are highly technical. Here we list some of the more significant.
Some of the changes
Regulation
The UK has had to create new regulatory bodies to replace EU ones, to maintain standards for chemicals, medicines, medical devices and phytosanitary goods, and to operate a new consumer Product Mark to replace the EU’s CE mark. Importers and exporters (on both sides) will have to conform to both sets of regulations, which is bound to limit trade. In a members survey, the British Chambers of Commerce found only 8% of members believed that the change had been worth it.
Progress has been slow. UK in a Changing Europe observes that many of these changes do not seem to have been anticipated, and the new bodies have taken time to establish and begin work. UK regulators have found it difficult to recruit staff and manage the workload, and in several cases, the government has agreed to defer implementation of the new rules.
Financial Services
This is an area where there has been substantial change designed to retain the UK’s global lead (this is over 8% of the UK economy) and remove constraints on businesses.
The Financial Services and Markets Bill, currently in the House of Lords, makes sweeping changes. At 346 pages, and 237 pages of explanatory notes, it is a huge and complex piece of legislation. Among its more controversial changes, is divergence from the EU’s Solvency II regulations (created to reduce risk in insurance markets) and removing caps on bankers’ bonuses.
Food and Agriculture
The English plan is, over six years, to replace the EU’s Common Agricultural Policy, where farm subsidies are based on land area, with subsidies based on public good and the environment. There have been concerns about this Environment Land Management Scheme (ELMS) over implementation, and its impact on UK food security.
To avoid disruption of food supplies, the UK has repeatedly delayed the introduction of checks on food imports from the EU. Concern has been expressed that this gives EU exporters an unfair advantage, since the EU is already operating checks on British exports.
Farmers have expressed concerns about trade deals agreed with Australia and New Zealand where some regulations are less rigorous. The fear is that this will make UK farming uncompetitive, and lower food standards. There has also been relaxation of controls on genetic modification in crops. The UK is also introducing a ban on live animal exports which was not possible in the EU.
Since agriculture is an area of developed competence in the UK, it is not yet clear how far English proposals will apply in the devolved administrations.
Climate and Environment
The UK’s plans for a set of environmental principles and reforms to the EU habitats directives, both mean a relaxation of EU standards of environmental protection.
However, by contrast, the UK’s Net Zero plans are broadly consistent with the EU’s, and the UK is considering whether to adopt some form of carbon border tax, of the kind being introduced by the EU.
There has been divergence over energy policy, sparked by the Ukraine crisis. The focus of the EU has been on reducing demand, while the UK has concentrated on reducing bills for consumers.
The EU is considering legal action against the UK over sewage dumping, which they claim is in breach of the Trade and Cooperation Agreement. Prior to Brexit the European Commission had twice taken such action against the UK.
Technology and AI
The EU’s Digital Services and Digital Markets Acts aim to increase the social obligations and diminish the market dominance of big tech. The UK has similar policy ambitions in its Online Safety Bill and planned digital markets regulation. However, nothing has yet been done to create the necessary infrastructure, and the EU has blocked cooperation on this in response to the dispute over the Northern Ireland Protocol.
The UK plans to relax data protection regulations, effectively withdrawing from the EU’s General Data Protection Regulations (GDPR). This might reduce burdens for UK businesses internally but would increase them for anyone seeking to move data between the UK and EU.
The UK and EU are diverging on artificial intelligence. While the EU approach is to regulate specific technologies, the UK is adopting broad principles, with the aim of making the UK a more attractive place for innovation.
Phone companies are now able to reintroduce roaming charges for people travelling in Europe, and most have already done so.
Mobility and borders
Lack of mutual trust between France and the UK has caused friction. The UK has deferred implementation of some planned border controls because of lack of staff and facilities. Plans for a visa waiver scheme and biometric checks are waiting for implementation systems. New requirements to stamp passports have doubled the time to process each passenger, causing significant delays at the ports.
Since Brexit, it has not been possible to export livestock to France, because the French have not yet created the facilities for checking livestock imports. However, trade in the other direction remains uncontrolled, creating another imbalance.
Transport
The UK has relaxed EU regulations on HGV driver hours, and cut air passenger duty on domestic flights. Under pressure from the airlines, they are consulting on changes to the air passenger compensation scheme, to make compensation for delays less generous.
After failure to agree mutual recognition of the “blue badge” scheme, disabled UK citizens driving in Europe will no longer be able to benefit from concessions which apply in the UK.
Developing countries
The UK is moving faster to expand trade with developing countries. The EU’s scheme provides tariff reductions on 80% of product lines, while the UK’s scheme puts zero tariffs on 85% of lines (covering trade worth £2bn) and reaches eight more countries than the EU.
Devolved administrations
Tensions continue between Westminster and the devolved administrations, who are concerned that some areas of devolved powers may be compromised by post Brexit changes. This includes the UK Shared Prosperity Fund, and the Professional Qualifications Bill.
An example of divergence here, is the decision of the Scottish government to go further than England in banning single use plastics.
Northern Ireland
The EU-UK dispute over the implementation of the Northern Ireland Protocol continues. The Bill is currently with the House of Lords. If passed, it would represent a major rejection of an international treaty which the UK signed in 2019. It has already led to retaliatory action and is highly likely to lead to legal action by the EU.
Conclusion
We now know that there are around 4,000 EU laws and regulations to be reviewed. The experience of the first two years since Brexit suggests that the government’s plan to unscramble 46 years of law-making in twelve months is overambitious. Perhaps the Lords will force some delay. Without that, it seems inevitable that there will be unintended consequences.
It is clear that those who advocated this form of Brexit underestimated the complexity of the task. It is not at all clear that those who voted for it had any intention of making the kinds of changes which are now taking place. During the next year it will be important to ensure that what limited opportunities for scrutiny are taken. We are fortunate to have a national research agency devoted to tracking these issues.
