The quiet expiry of Brexit’s delegated powers

The expiry of delegated Brexit powers in 2026 will provide Parliament with a greater role in reforming EU-derived laws, curtailing the Government’s ability to amend laws inherited from the UK’s EU membership by secondary legislation and marking a quiet but consequential rebalancing of the relationship between Parliament and the Executive.

Readers may recall that the then-Retained EU Law (Revocation and Reform) Bill drew both excitement and criticism. For some parliamentarians, the Bill was an opportunity for the UK to ‘take back control’ of its laws. Others feared the Bill would lead to a ‘bonfire’ of EU-derived regulation.

The so-called ‘sunset provision’ in the Bill was responsible for much of this public comment. It would have revoked broadly all retained EU law unless expressly retained. In the event, it was removed before the Bill received Royal Assent (as the Retained EU Law (Revocation and Reform) Act 2023). 

Also controversial, however, were the delegated powers in the Act permitting ministers to update, restate, revoke or replace a wide swathe of EU-derived legislation via statutory instrument. Section 14 of the 2023 Act drew particular attention: it empowers ministers to either revoke EU-derived legislation or replace it with such ‘alternative provision’ that a minister ‘considers appropriate.’

This broad power reflected the then-Conservative Government’s concern that retained EU law ‘should not remain on the statute books indefinitely where it does not work for the UK.’ A new mechanism to allow changes to the substantive content of retained EU law was therefore seen as necessary – in particular, because some EU laws ‘have less democratic legitimacy than laws initiated by the UK Government.’

Some parliamentarians took a different view. It was said during the Bill’s Committee Stage that passage of this power would leave the public looking forward to the ‘slow trickle of their rights being watered down and washed away’ in the name of deregulation.

Unlike the sunset provision, this broad power did become law. But the Government has exercised restraint in using it. It had at last count been exercised on only 29 occasions.

That might reflect, in part, a different perception on the part of the Labour Government of the deregulatory dividends offered by Brexit, or perhaps a lack of bandwidth on the part of the Civil Service. It might also reflect concerns, voiced in Parliament during the Bill’s passage, that clearing the high evidentiary threshold to exercise the power may be challenging. To use the power, the Secretary of State must first satisfy themselves that a particular reform will not ‘overall … increase the regulatory burden.’

In any case, however, the power will cease to be available to Government after 23 June 2026 – the symbolic tenth anniversary of the Brexit vote. That is a moment of quiet constitutional significance. Reforms to assimilated EU law (a total of 6,925 such laws are currently listed on Government’s EU Law ‘Dashboard’, of which 4,351 are marked as being ‘unchanged’) after that date will in many cases require new primary legislation, in place of secondary legislation made under the 2023 Act.

That moment will rebalance the relationship between Parliament and the Executive. It is a counterpoint to the recent concern voiced by the House of Lords Delegated Powers and Regulatory Reform Committee that ‘the balance of power between Parliament and government has for some time been shifting away from Parliament, a trend accentuated by the twin challenges of Brexit and the Covid‑19 pandemic.’ Indeed, a curious result of this rebalancing is that—because they will be contained in primary legislation—measures to reform assimilated EU laws may now receive more parliamentary scrutiny than those EU laws themselves received when first given effect in the UK under the European Communities Act 1972.

Constitutional subtleties aside, this is a change with practical significance. A requirement to pass primary legislation may place additional pressures on the legislative timetable. Stakeholders who are advocating for reform to assimilated EU laws should bear in mind that achieving this may in future require Government to pull different levers, and that such reforms may be subject to greater parliamentary scrutiny. 

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