Some reflections (and concerns) over the ‘Brexit Freedoms Bill’ – Lexology

As the legal, business and political communities continue to consider the implications and likely outcomes of the UKs governments proposal for a so-called Brexit Freedoms Bill (and associated policy paper on The benefits of Brexit), a few reflections are offered here on the direction of travel indicated. Whilst the contents of the actual bill remain unclear, some potentially troubling questions emerge from the initial rhetoric.

Data, tech and the regulatory landscape

Although the full wording of the bill has not yet been published, the governments press release proclaimed that [t]hese reforms will cut 1 billion of red tape for UK businesses, ease regulatory burdens and contribute to the governments mission to unite and level up the country.

At first blush, there appears to be some tension between the aim of cutting red tape (which implies a lighter regulatory burden) and another objective stated of transform[ing] the UK into the best regulated economy in the world with a high-standards regulatory framework. Scepticism has also been raised on this 1 billion headline figure (as well as the risks that cutting red tape can involve).

Of particular note for readers of this blog, the Prime Minister commented that the proposals would be pro-growth and give businesses the confidence to innovate, invest and create jobs in areas like cyber technology, artificial intelligence, and gene editing.

In the field referred to as Data and AI specifically, the bill aims to facilitate the UK moving in a faster, more agile way to regulate new digital markets and AI and creating a more proportionate and less burdensome data rights regime compared to the EUs GDPR. When placed in the context of the rhetoric of the press release as a whole, it is difficult to isolate concrete legal proposals from political grandstanding. Indeed, the language used here raises several questions, including:

Parliamentary scrutiny

On a more general note, there are concerns from within the legal community and beyond with the proposed mechanism for achieving these stated goals. The government notes that under current rules, reforming and repealing this pipeline of outdated EU law would take several years because of the need for primary legislation for many changes, even if minor and technical. As a result, the government proposes that [t]he Bill will make it easier to amend or remove outdated retained EU law.

The implication is that the draft legislation may give ministers powers to remove, amend or add legislation as statutory instruments. Given approximately 3,500 statutory instruments are made each year already (with many not subject to parliamentary scrutiny and a tiny fraction actually not being approved), there may be concerns at the scope of these proposed powers.

Indeed, this ambition is somewhat difficult to reconcile with the aim for Brexit to increase the role of the UK parliament in legislating: this contrasts with the press release's introductory remarks that many EU laws did not receive sufficient scrutiny in our democratic institutions and the comment by the Attorney General that the legacy EU rules in question often had limited meaningful parliamentary scrutiny.

Conclusion

Given the breadth of both the legislative reforms suggested and the powers which could be used to effect them, the draft bill itself will need very careful scrutiny once published in order (among other things) to safeguard the rights of data subjects and, more generally, the role of Parliament as the UKs legislature.

"The new legislation will ensure that changes can be made more easily, so that the UK can capitalise on Brexit freedoms more quickly."

https://www.gov.uk/government/news/prime-minister-pledges-bre

Continued here:

Some reflections (and concerns) over the 'Brexit Freedoms Bill' - Lexology