Introduction
The European Union and the United Kingdom are currently engaged in a ‘reset’ of relations. An international summit between the parties will take place in London on 19 May 2025. The driving forces have been geopolitical, as Russian aggression in Ukraine has incentivised bilateral security cooperation. Reset, however, also has a significant legal dimension. Articles 126, 691, and 776 of the EU-UK Trade and Cooperation Agreement (TCA) provide mechanisms for formal review of the treaty. The latter is particularly important in terms of sequencing, as the obligations it creates for the parties to ‘jointly review the implementation’ of the TCA five years after its entry into force and every five years thereafter mandates such exercise before 1 May 2026.
This contribution will focus upon a specific issue concerning EU-UK relations that could complicate both the political reset and the legal review – the possibility that the UK may be in breach of both the ‘Level Playing Field’ (LPF) and good faith requirements under the TCA by virtue of certain delegated powers on its statute book relating to assimilated law (formerly ‘retained EU law’). This post will argue that, if the UK were to remove these executive powers from its statute book then it would eliminate both a domestic Rule of Law problem and a potential roadblock for the reset of EU-UK relations.
The Level Playing Field requirements
The TCA also introduced ‘Level Playing Field’ arrangements in the form of the “non-retrogression” commitments in Article 387. This provision imposes a duty on the Parties not to weaken or reduce rules on existing law on labour and social level of protections and environment and climate, as they existed on 31 January 2020, in a manner which could affect trade and investment. At the time of the passage through the UK Parliament of the Retained EU Law (Revocation and Reform) Act 2023 (REULA) – legislation that transformed ‘retained EU law’ into ‘assimilated law’ – arguments were made that a UK Government could reduce social protections if an argument could be sustained that this pertained to a purely internal situation and would not affect trade nor investment. For example, the previous Conservative Government may have been able to ‘salami slice’ the law in certain areas–for example gradual removal of the accrual of sick leave or maternity leave from paid annual leave. The current Labour Government’s programme in employment law and attendant social protections means that such a situation is now unlikely. However, it remains the case that an executive power remains on the statute book that could hypothetically be used in such a way as to undermine the United Kingdom‘s international obligations under the TCA. that a UK Government could reduce social protections if an argument could be sustained that this pertained to a purely internal situation and would not affect trade nor investment. For example, the previous Conservative Government may have been able to ‘salami slice’ the law in certain areas–for example gradual removal of the accrual of sick leave or maternity leave from paid annual leave. The current Labour Government’s programme in employment law and attendant social protections means that such a situation is now unlikely. However, it remains the case that an executive power remains on the statute book that could hypothetically be used in such a way as to undermine the United Kingdom‘s international obligations under the TCA.
The Problem
The specific problem is the lingering risk that such delegated powers could be exercised in a way so as to revoke or restate assimilated law in the areas of social and environmental protections in such a way that this could lead to regression in standards as they stood at the end of the transition period. If such a regression were determined also to be liable to cause distortions in trade and/or investment between the EU and the UK, then the United Kingdom would be in breach of its Level Playing Field requirements under Title IX Part 2 TCA.
In 2020 and then again in 2022 the UK Government proposed clauses in the Internal Market Bill and the Northern Ireland Protocol Bill respectively that would have enabled disapplication of the NIP (now the Windsor Framework (WF)). These executive powers would have empowered the UK Government unilaterally to breach the EU-UK Withdrawal Agreement. There was academic debate, for example on the UK Constitutional Law Association blog and on this Blog by this author and John Bell, over what conduct, on a sliding scale, would be sufficient to establish a breach of the EU-UK Withdrawal Agreement. Three options were the simple proposal of such powers; the promulgation of the powers if they had come into force; or the exercise of the powers. An argument could be extended by analogy to the TCA Level Playing Field declaration in Preamble point 9 and the non-regression obligations in Art 387, 391, and TCA.
This latter argument would run that the mere presence of the delegated powers contained in sections 11-16 REULA, which could be used in such a way as to modify assimilated law to reduce levels of labour and social, and environmental and climate protection respectively, is sufficient to establish breach of the TCA. The crux would be the UK’s failure to comply with the obligation in Art 3 TCA whereby the EU and the UK as parties “shall, in full mutual respect and good faith, assist each other in carrying our tasks” that derive from the TCA and supplementing agreements. Such an argument could be supplemented by/predicated upon Article 4’s statement that the provisions of the TCA and supplementing agreements, which includes the good faith commitment clause, “shall be interpreted in good faith” and also in line with purposive interpretative canons.
This expansive ambit of interpretation opens the door to a position whereby the previous UK Government’s self-empowerment to create secondary law that could regress on LPF standards, coupled with the present Government’s omission to remove these potential regression powers, could be argued to breach the obligation to carry out the “task” of ensuring the standards of protection that persisted on 31 December 2020 under Article 3. In other words, the fact that the UK could lower standards may be sufficient to demonstrate that it is not faithful to the obligation to maintain these levels of protection. Although such a legal argument may be regarded as speculative, the important strategic point is that the UK Government’s decision to keep these powers on the statute book could prove to be a barrier to review, renegotiation, or mere supplementation of the TCA if the EU institutions (mainly the European Commission) felt that the UK’s status as a good faith partner was affected by the existence of the assimilated law modification powers in REULA.
The Rule of Law problem, therefore, is not only the risk that the United Kingdom may not be in compliance with its international law obligations. Such non-compliance is predicated upon the existence of wide executive powers – without sufficient safeguards, such excessive delegation from Parliament to the Government is problematic in itself. The problem is compounded further by the fact that these powers to make, re-make, and revoke law may lead to legal uncertainty and a lack of foreseeability for end users on whether the UK will maintain compliance with its obligations. These stakeholders include businesses and citizens, and the UK’s international partners in the EU institutions and Member States,. It remains to be seen whether the wording of Article 776 TCA to review the ‘implementation’ of the Agreement could be interpreted as requiring EU actors to consider whether the UK has breached the LPF and good faith requirements by maintaining the delegated powers to modify relevant assimilated law on its statute book.
Resolving the Problem?
This potential road-block for the reset of EU-UK relations could be resolved unilaterally by the UK Government. The executive could impose a new condition upon itself whereby no regulations created under the relevant sections may lower regulatory standards to the extent that it could undermine the UK’s obligations under Title IX of Part Two TCA.
It may also be necessary to revoke the condition contained within section 14(5) REULA whereby powers cannot be exercised so as to “increase the regulatory burden” within the UK. The non-regression nature of the LPF means that compliance therewith does not require the United Kingdom to impose new regulatory burdens that did not exist on 31 December 2020. However, the current conditionality on no new regulatory burdens skews towards deregulation as opposed to maintenance of standards.
The condition not to impose new regulatory burdens could impede the current Government’s apparent policy preference to avoid trade barriers emerging through ‘passive divergence’ by closely tracking EU standards through new legislation. The Product Liability and Metrology Bill is currently before the UK Parliament, following the coming into force of the EU Regulation on General Product Safety 2023/988 (the ‘GPSR’) on 13 December 2024. It creates delegated powers enabling convergence with EU standards. Furthermore, the Data (Use and Access) Bill was proposed with the European Commission data adequacy decisions for the UK due to expire on 27 June 2025. One of its clauses reinstates the primacy of assimilated law in the area of data protection.
The no new regulatory burden condition may have meant that such primary legislation was necessary to pursue convergence. A sector specific approach to assimilated law standards through primary legislation may greater safeguard the Rule of Law principles of certainty, clarity, and accessibility as argued during the passage of the REUL Bill before the House of Commons European Scrutiny Committee. From the perspective of governance efficiency – one of the drivers behind the original proposal to amend retained EU law via secondary powers in the ‘Benefits of Brexit White Paper’ – such primary law-making requires more Government and parliamentary time and capacity in areas in which pre-existing delegated powers are available.
Conditioning the use of these powers upon compliance with the TCA LPF requirements would ameliorate the possibility of the United Kingdom violating its international obligations. Such a legal commitment would evidence a pro-active approach to international law as a core facet of the UK Attorney General’s claim to be pursuing “Rule of Law leadership”. Such an approach would also fit the strategic priorities of the Government at a time of political reset in EU-UK relations ahead of the legally mandated review of the TCA from 2025 onwards.
A ‘self-denying ordinance’ from Ministers that the powers will not be exercised to lower standards may not be sufficiently binding for the European Commission. Furthermore, the implementation of the results of the TCA review may persist beyond the ‘sunset date’ of 23 June 2026 whereby certain powers under sections 11-15 will expire. Implementing a legal condition of compliance with TCA obligations for the exercise of assimilated law modification powers would demonstrate commitment to the Rule of Law principle of compliance with international law. It would also assist the UK in its geopolitical priority to normalise and improve relations with the European Union, with a view to potential reform of the TCA.
Conclusion
The EU-UK reset of relations has been facilitated by the coherence of foreign policy objectives between the relatively new UK Labour government under Prime Minister Sir Keir Starmer and the European Commission under the presidency of Ursula von der Leyen. This contribution has sought to demonstrate how a legacy issue from the period of tenser relations between the former UK Conversative governments of Boris Johnson, Liz Truss, and Rishi Sunak could jeopardise the reset, and require action to be taken within the auspices of the legal review mechanism mandated by Article 776 TCA.
Therefore, proposals have been outlined that seek not only to eliminate such arguments that the UK may be in breach of its TCA obligations, but that would also have the positive spill-over effect of resolving the domestic Rule of Law problem of excessive delegation of powers to the UK executive in an area that constituted a‘binding and overriding’source of law during the UK’s membership of the EU.
Dr Oliver Garner is currently Maurice Wohl Research Leader at the Bingham Centre for the Rule of Law, BIICL and a Visiting Lecturer at City Law School, City St George’s, University of London. He was a founding editor of the Review of Democracy (RevDem), the live platform of the CEU Democracy Institute, in 2020 and served as Co-Managing Editor and Managing Editor of the CEU Democracy Institute Working Paper series. He was an editor of the European Law Blog and the European Journal of Legal Studies during his doctorate. He holds a BA Jurisprudence from the University of Oxford, and an LL.M. and Ph.D. from the European University Institute. His first monographConstitutional Disintegration and Disruption: Withdrawal and Opt-Outs from the European Union was published by the Oxford Studies in European Law series of Oxford University Press on 1 May 2025.