A significant amount of primary and secondary legislation is required to deal with Brexit and ensure the functioning of the Protocol on Ireland/Northern Ireland. Primary legislation is made by Acts of Parliament. Secondary legislation, also called ‘delegated legislation’, is made by Ministers under powers given to them in primary legislation. Primary legislation can be described as the framework for a policy, while secondary legislation provides the detail within that framework.
The following is a list of EU Exit-related primary legislation. Acts have been made, while Bills are in the process of being enacted by the UK Parliament:
- The EU (Future Relationship) Act 2020 gives legal effect to the Trade and Cooperation Agreement signed between the EU and the UK.
- The European Union (Withdrawal Agreement) Act 2020 gave legislative effect to the provisions of the Withdrawal Agreement agreed between the UK and EU.
- The European Union (Withdrawal) Act 2018, also known as the ‘Repeal Bill’ was passed in 2018 and as of 31st January 2020 repealed the European Communities Act of 1972, ending the primacy of EU law in the UK. It converted EU law into domestic law – this was important to ensure some continuity and certainty in areas previously covered by EU law.
- Trade (Australia and New Zealand) Act 2023
- Professional Qualifications Act 2022
- Subsidy Control Act 2022
- Nationality and Borders Act 2022
- Environment Act 2021
- Financial Services Act 2021
- Medicines and Medical Devices Act 2021
- Trade Act 2021
- Internal Market Act 2020
- Private International Law (Implementation of Agreements) Act 2020
- Fisheries Act 2020
- Agriculture Act 2020
- Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020
- Extradition (Provisional Arrest) Act 2020
- Direct Payments to Farmers (Legislative Continuity) Act 2020
- Healthcare (European Economic Area and Switzerland Arrangements) Act 2019
- Taxation (Cross-border Trade) Act 2018
- Haulage Permits and Trailer Registration Act 2018
- Nuclear Safeguards Act 2018
- Sanctions and Anti-Money Laundering Act 2018
In the Queen’s Speech 2022, the UK Government announced its plans for post-Brexit regulation and legislation, including the following Bills:
- Retained EU Law (Revocation and Reform) Bill
- Financial Services and Markets Bill
- Procurement Bill
- Data Protection and Digital Information Bill
- Genetic Technology (Precision Breeding) Bill
On 13 June 2022, the UK Government published the Northern Ireland Protocol Bill. This Bill would disapply core parts of the Protocol relating to trade in goods, subsidy control, the role of the Court of Justice of the EU, plus allow changes to VAT. The Government also published a policy paper and explanatory notes for the Bill, as well as its legal position. The Bill contained provisions which cover devolved or transferred matters and where the Bill engages the Legislative Consent Motion process, the UK Government would seek consent from the devolved administrations. In light of the Windsor Framework, the UK did not proceed with the NI Protocol Bill, which falls at the end of the parliamentary session.
The Government introduced the Retained EU Law (Revocation and Reform) Bill to Parliament in September 2022. The Bill would “sunset” the majority of retained EU law so it expires on 31 December 2023, unless preserved. On 10 May 2023, Minister Kemi Badenoch announced a “new approach” for REUL and amendments to the Bill: the sunset date would be replaced by a list of approximately 600 laws the Government intends to revoke at the end of 2023. Retained EU law refers to EU law (as it was on 31 December 2020) which was converted into UK domestic law by the EU (Withdrawal) Act 2018 when the UK left the EU. This aimed to provide legal certainty in the immediate period following the UK’s exit from the EU. It is also sometimes referred to as a ‘copy and paste’ of EU law onto UK statute books. In September 2021, the UK Government announced a review of both the status and substance of retained EU law. The Government has published a dashboard of retained EU law. Read more in the Commons Library briefing on the Retained EU Law Bill.
According to the Sewel Convention, when the UK Parliament is legislating on matters within the devolved competence of the administrations of Northern Ireland, Wales, and Scotland, the Government should “not normally” do so without the consent of the devolved administration. The devolved administrations can indicate their consent for Westminster to legislate on a devolved matter by agreeing a legislative consent motion (LCM). You can find details of the LCMs which the Assembly has considered in relation to Brexit by following this link. Ultimately, the principle of parliamentary sovereignty means that Westminster has the power to legislate on any matter, whether devolved or not.
The EU (Withdrawal) Act 2018 gave Ministers power to create statutory instruments (SIs) to manage the legal issues caused by Brexit and ensure the law will function properly. SIs are the most common type of secondary legislation. UK statutory instruments will make most regulatory and legislative changes related to Brexit. Scrutiny of SIs is a matter for the UK Parliament.
Departments in the Northern Ireland Executive also have powers to bring forward secondary legislation in the form of Statutory Rules. These rules are made in accordance with powers granted in the ‘parent’ or primary legislation. Northern Ireland Assembly Committees undertake scrutiny of this secondary legislation. Read the details of the Brexit-related Statutory Rules passed by the Assembly. If you want to learn more about Statutory Rules, a useful FAQ can be found here.
Windsor Framework and the Stormont Brake
The Windsor Framework made arrangements for the Stormont Brake mechanism, through which 30 MLAs could potentially stop amended or replaced EU legislation applying under the Protocol. These arrangements are set out in a Statutory Instrument, the Windsor Framework (Democratic Scrutiny) Regulations 2023. It provides for a new committee in the NI Assembly “to support MLAs in considering whether this new power should be used”. It also sets out a role for the Assembly in relation to new EU acts. The Assembly must pass an ‘applicability motion’ with cross-community support before the UK can agree for new EU acts to be added to the Protocol.