The forthcoming King’s Speech, it is reported, will include a Bill to facilitate “dynamic alignment” with some EU rules, attracting criticism from some politicians that sovereignty regained through Brexit is now to be sacrificed, subverting the “will of the people”. Such arguments, however, cannot withstand scrutiny.
The UK government, it is widely reported, is planning to introduce legislation that will enable “dynamic alignment” with certain European Union laws – including in order to give effect to an agreement that is intended to make it easier for food and related goods to move between the UK and the EU. The notion of dynamic alignment involves ensuring that UK law remains in line with EU law on relevant matters, thereby enabling goods to move across the EU–UK border with less friction than at present, on account of the fact that identical regulatory regimes apply on both sides of the border. According to a report in The Guardian, the new Bill, to be included in the forthcoming King’s Speech, “will contain powers enabling the government to dynamically align with Europe on areas where it has already made agreements. But it will also allow the UK to quickly implement evolving single market rules if it determines it is in the national interest, without having to face full parliamentary scrutiny each time.” The report also says that “the Guardian understands ministers are bracing to face down opposition to ‘dynamic alignment’ with the EU from those who ‘scream treason’ over the powers” contemplated by the Bill.
“Henry VIII powers”
Until the text of the Bill is published, what is planned will not be entirely clear. It is possible, for instance, that “dynamic alignment” could include provision that would automatically result in UK law adapting in relevant areas whenever new EU rules were made. Comparable arrangements applied while the UK was a member of the EU – and indeed, post-Brexit, some matters under the EU–UK Withdrawal Agreement are accorded not only direct effect in UK law but also – like EU law proper during the UK’s period of membership – primacy over domestic law, including Acts of Parliament. This means that even if the new Bill were to go as far as this maximalist form of dynamic alignment with EU law, it would involve no conceptual or constitutional novelty.
However, it appears that what is contemplated is a “manual”, rather than an “automatic”, form of dynamic alignment. This, it seems, would involve the proposed Bill granting powers to Ministers enabling them to make secondary legislation implementing relevant EU laws in the UK. This would include so-called Henry VIII powers, which allow Ministers to make secondary legislation that amends primary legislation (ie Acts of Parliament). On this approach, Ministers would make a piece of secondary legislation whenever relevant EU law changed, the effect of the secondary legislation to give effect in UK law to the revised EU law – including, if necessary, by amending Acts of Parliament. Such an approach has already been adopted by the Product Regulation And Metrology Act 2025. More generally, Henry VIII powers are commonplace. Indeed, according to many – including the House of Lords Constitution Committee – they are far too common. Among the objections to wide, including Henry VIII, ministerial powers to make secondary legislation are concerns about democratic scrutiny, bearing in mind that secondary legislation cannot be amended by Parliament. Rather, it can only be approved or rejected, lending scrutiny an all-or-nothing quality that, in practice, means that secondary legislation is almost always approved. This, in turn, raises questions about the respective roles of the executive and Parliament under the separation of powers, giving rise to concerns about the dominance of the former over the latter.
It is not, however, clear that the proposed Bill to facilitate the dynamic alignment of UK with EU law is likely to raise any constitutional concerns beyond those inevitably raised by Henry VIII powers. Nor is it clear that pro-Brexit politicians are in any position to criticise what is proposed given the vast Henry VIII powers that were included in the European Union (Withdrawal) Act 2018 in order to ensure that, upon Brexit, vast holes in the domestic statute book caused by the evaporation of EU law could be filled. Certainly, in terms of domestic constitutional law and principle, it is hard to imagine that the powers contained in proposed new Bill will be nearly as extensive as those contained in the 2018 Act. While, therefore, it is perfectly sound to argue, as the Constitution Committee has done, that Henry VIII powers are “a departure from constitutional principle”, it is unlikely that the contemplated powers are any more constitutionally objectionable than many such powers that are already on the statute book.
“Sovereignty” and “the will of the people”
There is, however, a further layer to the emerging criticism of the proposed Bill. This is captured in the following critique advanced by Andrew Griffith MP, the Shadow Business Secretary:
Parliament reduced to a spectator while Brussels sets the terms is exactly what the country rejected. Labour’s dire management of the economy has driven Starmer scurrying to Brussels to distract from his own failings. Labour are still fighting the referendum because they fundamentally cannot accept the democratic decision the British people made.
A number of points can be made in response to this. There is certainly some truth in the point about reducing Parliament to a “spectator”, in the sense that what appears to be in contemplation is an agreement with the EU to abide by relevant EU rules alongside domestic legislation that will enable Ministers to see that that happens in practice. The objection, presumably, is that this turns the UK into a “rule-taker”, in the sense that, under this arrangement, the UK would have to fall into line with EU rules that – as a non-member – it would have had no hand in making. This is likely to give rise to criticism by pro-Brexit politicians that “sovereignty” – whether parliamentary or national, the two often being elided in this context – is being given up in order to secure better access to the EU market. Such criticism would, however, arguably be wide of the mark. If such a situation were to occur, it would come about only if, in the first place, Parliament approved the proposed Bill – which it would remain free to amend or repeal.
On an alternative framing, by enacting the proposed legislation, Parliament would be exercising, not sacrificing, its sovereignty, having (presumably) concluded that the trade-off involved – less discretion over relevant rules as the price of better access to the EU market – was worthwhile. Indeed, the UK, like all other nations, regularly engages in such trading off, entering into binding legal obligations with other States (or, as in the case of the EU, international organisations) because the upside, whatever it might be, is considered make any downside worthwhile. It follows that what appears to be contemplated by the government is not incompatible with either parliamentary or national sovereignty: Henry VIII powers, although giving rise to legitimate constitutional concerns, are not generally considered to be an affront to parliamentary sovereignty, while entering into binding treaty obligations that reduce a State’s room for lawful manoeuvre constitutes an exercise, rather than the sacrifice, of national sovereignty.
It is perhaps worth concluding with the final point made by Andrew Griffith in the quotation set out above: that the proposal for dynamic alignment involves the Labour government “still fighting the referendum because they fundamentally cannot accept the democratic decision the British people made”. This argument is questionable on several grounds. For one thing, throughout the Brexit referendum campaign, it remained unclear what sort of relationship Leavers envisaged between the EU Single Market and Customs Union and a post-Brexit UK. Given that ambiguity, and given that, in any event, the current proposal goes nowhere near as far as rejoining the Single Market or the Customs Union, is is hard to maintain that it contradicts the democratic decision made via the referendum. Indeed, it is the fundamental ambiguity concerning the content of that decision that made the post-Brexit period so politically fractious, the referendum having amounted to little more than a blank canvas so far as the nature of the future relationship between the UK and the EU was concerned. A decade after the referendum, it is disappointing – but certainly not surprising – to see politicians seeking to cloak their own policy preferences in the “will of the people” that, in all honesty, never existed at the level of detail with which the reality of economic and political life now makes it necessary to grapple.
Neither unconstitutional nor undemocratic
Where does this leave us? Whether the government’s proposed approach, involving dynamically aligning UK with EU law in certain areas in order to secure better access to the EU market, is a good idea is open to debate. It ultimately involves a judgement – for politicians and economists, not constitutional lawyers – about the likely benefits of improved trading conditions versus the costs involved in having less domestic discretion over relevant rules. However, while those questions remain up for discussion, the same is not true of the arguments that what is proposed would somehow be incompatible with “sovereignty” or the “will of the people”. It is manifestly open to Parliament, consistently with the principle of parliamentary sovereignty, to equip Ministers with the sort of Henry VIII powers that appear to be in contemplation. Meanwhile, entering into international arrangements that trade off binding legal obligations for economic benefit is a paradigm exercise of national sovereignty being deployed as distinct from depleted. And any suggestion that to take such a step would be undemocratic, ten years after a referendum whose result was resoundingly silent about the intended relationship between the EU and a post-Brexit UK, stretches credulity well beyond breaking point.