Dynamic alignment with EU law

What does this mean and how might it affect your business?

In April, it was widely reported that the UK Government is planning to legislate to enable ‘dynamic alignment’ with EU law.

What does this mean?

Cast your mind back to Brexit, which took place at 11pm on Friday 31 January 2020.

To prevent the chaos that would have ensued if the UK had discarded the entire corpus of EU law all at once, the Government passed the European Union (Withdrawal) Act 2018.

In simple terms, the effect of the Act was to take a copy of EU law on ‘exit day’ and paste it into the UK statute book. Today, this legislation is known as ‘assimilated law.’ Although it originated from the EU, Parliament now has the legal authority to make such edits as it pleases. As a result of Brexit, new EU laws do not (except, in specific circumstances, in Northern Ireland) apply in the UK.

What happens if the UK wishes to mirror EU laws in specific areas?  

The short answer is that the Government currently lacks the necessary powers to do this in an efficient manner. Primary legislation (Acts of Parliament) would be required.  

To resolve this problem, the Government is set to introduce a ‘reset’ or ‘dynamic alignment’ Bill. It is widely reported that this will – in certain areas – confer powers on Ministers to effectively ‘copy and paste’ new EU laws into the UK statute book via secondary legislation.

This type of power is often referred to as a Henry VIII power (in homage to the Tudor monarch, who is reputed to have had a taste for governing via Royal Proclamations, rather than Acts of Parliament). Secondary legislation moves through Parliament much more quickly, usually with little debate and no possibility to make amendments.

Whether you consider this a vice or a virtue in the context of alignment with EU law depends on where you sit on the political spectrum.    

The ‘dynamic alignment’ Bill hasn’t been published yet, but Reform UK have already commented that it represents "a backdoor attempt to drag Britain back under European Union control." 

The Government will push back against this narrative and argue that its real purpose is to ease the regulatory compliance burden, thereby making trade easier and lowering prices.

Comment

A certain amount of dynamic alignment between UK and EU law is already on the negotiating table in three areas:

• For animals, plants and related products under the auspices of a proposed Sanitary and Phytosanitary (SPS) agreement;
• Carbon emissions trading; and
• Electricity. 

Businesses should keep an eye out for the publication of which regulations will be in scope and which sectors are likely to be targeted by the dynamic alignment project.

If your business operates in the UK and the EU and you need assistance with any cross-border regulatory issues, please get in touch. 

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