What opportunities does the ‘Brexit Freedoms’ bill offer to agri-tech?

One of the first major announcements of Liz Truss’s government was a bill to amend, repeal or replace inherited EU law by 2023, aiming to “remove needless bureaucracy that prevents business from investing and innovating in the UK.” The ‘Brexit Freedoms’ bill (strictly the ‘Retained EU law (revocation and reform)’ bill) is the vehicle through which Truss’s government aims to push for growth through deregulation, after the two previous governments failed to prod Whitehall or business into coming up with a list of game-changing list of EU laws to be scrapped.

What will this mean for the regulation of agri-tech, and for Defra, the department most affected? Here are six takeaways.

1. The vast majority of 47 years’ worth of EU food regulation will fall by 23 June 2026 at the latest, unless specifically ‘saved’ by Defra. Although the bill only covers ‘secondary’ legislation, in practice most EU law on food and agriculture standards was given effect in the UK through implementing regulations and so comes under the sunset clause.

1. In practice the deadline is 2026. A Minister can keep any particular bit of retained EU law in operation until 23 June 2026 while they ‘assimilate’ it by stripping out EU legal concepts etc. Given how much of the food and agriculture statute book is affected, Defra Ministers will probably use this power widely. It’s unlikely in any case that the bill would be in force much before December 2023, given the probably opposition in the House of Lords;

1. Legal uncertainty is a feature, not a bug. The bill ends EU legal concepts – such as ‘direct effect’, allowing companies or individuals to sue the government over retained EU laws – by the end of 2023. This cannot be extended. If there is a conflict of interpretation after that, the courts will in principle have to give supremacy to pre-existing domestic laws over any retained EU laws that have been “assimilated”;

1. There is a huge opportunity to change retained EU law, not just ‘assimilate’ it. Ministers can in practice replace retained EU law with “such provision as they consider appropriate” i.e. anything, with no real Parliamentary scrutiny. The bill effectively creates a ‘no deal’ cliff edge allowing Minsters to say ‘if you don’t agree my changes, then the whole regulation falls and we’ll have chaos’.  This clause 15 will, more than anything, mobilise likely opposition in the House of Lords;

1. Departments will be under pressure to offer up deregulation ‘wins’, and to justify why they want to keep EU-derived laws – so agri-tech businesses should start working with trade bodies in the sector to identify where they may want existing EU rules scrapped or changed and where they want continuity. Defra will launch consultation exercises soon; this will be a huge, time-consuming exercise for them, so business help and suggestions, to change or keep existing rules, will be invaluable for officials.

1. Food and agriculture rules across the UK could diverge further. Devolved governments can also save what EU laws they wish and Scotland and Wales want to stay closely aligned with EU regulation. Their starting point may be to save everything – they’ve each already rejected the new Precision Breeding bill opening to gene editing technology in England, for example. Edinburgh and Cardiff will also have in mind the Internal Market Act, though, which ensures that food produced in England must be accepted in their markets, unless otherwise agreed.

For agri-tech regulation, pretty much everything is now on the table. Business and trade bodies will want to think about consumer confidence as they weigh what changes they want. But Defra will want to offer some deregulation changes to No10, and time is short – the sector should start drawing up its list now.