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Sir William Cash CH – Written Evidence (DYN0070)
The fundamental inconsistency of reconciling the so-called Reset with the reality of EU law making and EU decision shaping
By Sir William Cash CH, former Chairman of the European Scrutiny Committee of the House of Commons 2010-May 2024, and Chairman of the United Kingdom Sovereignty Foundation, 9 June 2026
Dynamic alignment means that the UK agrees not only to match certain EU rules at a single point in time, but also to continue updating its laws whenever the EU changes its own rules in the future. It therefore facilitates an ongoing legal and political relationship in which the UK remains connected to an evolving body of EU law. Over time, this could develop into a system in which changes to EU rules progressively shape British domestic policy, recreating some of the practical conditions of EU membership without the UK having formal voting rights within EU institutions.
According to the UK-EU Summit - Common Understanding "any agreement should include dynamic alignment with European Union rules where relevant, giving due regard to the United Kingdom's constitutional and parliamentary procedures and respect the role of the Court of Justice of the European Union within an arbitration-based dispute resolution mechanism, and an appropriate United Kingdom contribution to decision-shaping." The document further states, "To ensure that it can put forward its view, the United Kingdom should be involved at an early stage and contribute appropriately for a country that is not a member of the European Union to the decision-shaping process of European Union legal acts in the fields covered by the obligation to dynamically align. The European Commission should consult the Government of the United Kingdom at an early stage of policy-making. These rights would not extend to participation in the work of the Council or its preparatory bodies."
This is also confirmed by the European Commission's Recommendation for a Council decision authorising the opening of negotiations "Neither agreement should give the United Kingdom the right to participate in the Union's decision-making. However, the United Kingdom should be involved at an early stage and contribute appropriately for a county that is not a member of the European Union to the decision-shaping process of European Union legal acts in the fields coveted by the obligation to dynamically align and simultaneously apply. The European Commission should consult the United Kingdom at an early stage of policy-making. These rights would not extend to participation in the work of the Council or its preparatory bodies."
This language makes clear that the proposed arrangements would not place the United Kingdom on an equal footing with the European Union. The documents expressly confirm that the UK would have no participation rights in the EU's formal decision-making structures, including the Council and its preparatory bodies. In practice, this means that the United Kingdom could be consulted on proposed EU legal acts and allowed to express its views at an early stage of the law-making process, but the ultimate authority to adopt, amend and interpret the relevant rules would remain entirely within the European Union institutions.
Hence, the United Kingdom's minimal influence would be largely limited to the early stages of the EU legislative process, before formal proposals are fully developed and subsequently adopted through the EU's institutional framework. Once the legislative process advances, proposals may be substantially amended through negotiations between the European Commission, the European Parliament and the Council, including in Council working groups, COREPER, behind-closed-doors trilogue negotiations, and final adoption by qualified majority voting in the Council.
As the UK would not participate in the Council or its preparatory bodies, it would have no formal role in shaping or blocking amendments during those later stages of the legislative process. The distinction is therefore significant, as the most decisive stages of EU law-making occur after the Commission's initial proposal, when institutional negotiations can materially alter the final text.
While the UK may be involved in early-stage consultation under "decision-shaping" arrangements, this would not amount to participation in EU decision-making. Any such engagement would be informal and consultative in nature, with limited capacity to influence the outcome once the legislative process is underway. EU Member States would continue to negotiate, shape and adopt legislation in line with their national and collective interests through the EU’s institutional framework. By contrast, the UK would not participate in those legislative decisions yet would be required to comply with the resulting rules, while also bearing the financial and administrative costs of their domestic implementation, monitoring and enforcement, alongside any agreed financial contributions to the EU budget.
Under such a model, the European Union would act as the “rule-maker”, amending and developing its legislation through its own institutions and legal processes, while the UK would be expected to incorporate those changes into its domestic legal order as a rule-taker. The UK would be required to update its domestic rulebook in line with the evolution of EU legislation and regulatory standards, despite no longer participating in the EU’s legislative institutions or decision-making structures. The practical effect is that the UK could become subject to an evolving body of EU law and judicial interpretation without possessing the institutional powers available to EU Member States to shape or block those developments.
The UK would be expected to accept and apply evolving EU rules without formal participation in EU decision-making, including voting rights, legislative representation, let alone a veto over measures that may not align with UK interests. Under the dynamic alignment arrangements, which the upcoming European Partnership Bill is expected to introduce, EU laws would be incorporated into UK law through secondary legislation. In practice, this could significantly limit Parliament’s role, as it may not have a substantive or formal vote on each measure, depending on the procedure used.
Another important point is that, even when the United Kingdom was an EU Member State, parliamentary scrutiny of EU legislation was already limited and Parliament often struggled to influence legislative outcomes effectively. Although the UK participated directly in EU institutions, sat at the negotiating table, and possessed voting rights in the Council, it nevertheless frequently found itself unable to prevent measures it opposed.
This reflected the nature of EU decision-making itself. EU legislation emerged through complex negotiations involving trade-offs between Member States, political bargaining, trilogues between the European Commission, Council and European Parliament, consensus-building exercises, and compromises often shaped by the interests of larger Member States. One of the principal political arguments advanced during the Brexit debate was precisely that the UK frequently lacked meaningful control over laws applying domestically despite formally participating within the institutions.
However, under dynamic alignment arrangements, the UK’s position would be substantially weaker than it was even during membership. In effect, the UK would move from being a relatively influential but sometimes outvoted Member State into the position of a non-member rule-taker.
The UK may receive consultation rights or opportunities for early-stage “decision-shaping”, but it would not possess any formal ability to vote on, veto, amend, or block EU legislation. In practice, new EU rules within the covered sectors could flow into UK law without Parliament having any meaningful role in shaping their substance.
The issue therefore goes far beyond ordinary scrutiny. Even if Parliament established significantly stronger scrutiny procedures, scrutiny alone would not resolve the fundamental constitutional problem. Parliament may ultimately have little practical ability to reject rules that are considered necessary to preserve agreements with the European Union.
Parliament cannot meaningfully amend or influence EU laws adopted through institutions in which the UK no longer participates.
The abolition of the European Scrutiny Committee, combined with the currently weak and fragmented scrutiny arrangements for UK-EU relations, further aggravates these concerns.
At the same time, Parliament would no longer benefit from the treaty-based information rights that existed during EU membership. The European Commission would not be under any legal obligation to transmit proposals directly to Westminster. Instead, information would largely flow through the government.
This creates a significant constitutional imbalance. The Government may become deeply engaged in informal consultations, technical discussions, and early-stage policy development with the Commission long before Parliament is informed in any meaningful way. Parliament could therefore find itself scrutinising measures only after political compromises have already emerged, after the Government has informally committed itself at EU level.
Parliament would theoretically remain sovereign, yet its practical room for manoeuvre could become increasingly constrained by international commitments and the economic and political consequences of non-compliance.
In practice, the only true "veto" may ultimately be withdrawal from the agreements themselves. Yet terminating such agreements could itself carry major consequences depending on the sector concerned, including the restoration of full sanitary and phytosanitary border controls, suspension of market access facilitations, disruption to emissions trading arrangements, carbon border adjustment consequences, and wider deterioration in UK-EU cooperation.
In many respects, this could place the UK in a weaker constitutional position than it occupied even during EU membership. During membership, the UK participated directly in negotiations, built blocking minorities, negotiated compromises, influenced drafting, participated in trilogues through the Council structure, and possessed institutional representation throughout the legislative process. Under dynamic alignment, even those limited forms of influence would largely disappear. The result risks becoming a system of regulatory incorporation without representation — or, put more bluntly, alignment without meaningful democratic participation.
There is no indication that the United Kingdom would possess a formal veto over the adoption of new EU legislation under dynamic alignment arrangements. The UK's role would instead be limited to consultative "decision-shaping", consisting primarily of technical discussions, informal consultation, and the provision of feedback to the European Commission during the drafting phase. Ultimate authority over the content, adoption, amendment, and interpretation of EU rules would remain exclusively with the European Union and its institutions.
Government statements that "no new EU rules will apply in the UK without the UK first agreeing" are ambiguous and risk being misleading if interpreted as implying a case-by-case veto over EU law-making.
In practice, such statements are more likely to mean that the United Kingdom would agree, at treaty level, to a framework of ongoing dynamic alignment obligations in specified sectors, rather than approving each individual EU legislative measure separately as it arises.
Domestic implementation would then occur through UK constitutional mechanisms, most likely by means of secondary legislation under powers granted through an enabling Act of Parliament. Parliament would therefore not be re-litigating each individual EU measure through primary legislation. Instead, implementation could become largely automatic or quasi-automatic, with the substantive political decision occurring upstream when Parliament initially approves the dynamic alignment framework itself.
This raises significant concerns regarding parliamentary sovereignty and democratic accountability. Secondary legislation procedures typically provide only limited opportunities for amendment or detailed scrutiny. As a result, Parliament’s role may become confined largely to reviewing measures that are politically and economically difficult to reject once international commitments have already been undertaken.
Accordingly, although Parliament would formally remain sovereign in legal theory, the practical reality may point towards an essentially automatic process of regulatory updating, with only limited scope for meaningful parliamentary intervention at the point of transposition.
The introduction of dynamic alignment would lead to a substantial and continuous flow of EU-derived rules, technical regulations, delegated acts and implementing measures being transposed into UK law. In practice, this would create a highly complex and fast-moving regulatory environment, making it difficult for Parliament—and indeed the public—to maintain a clear overview of what rules are in force at any given time, let alone exercise meaningful influence over them.
This challenge is compounded by the abolition of the European Scrutiny Committee in the House of Commons, which previously provided a dedicated institutional mechanism for tracking and assessing EU legislative developments.
As a result, a scrutiny gap emerges at precisely the point where dynamic alignment would most intensify the need for oversight. The volume and pace of EU regulatory output—particularly in areas such as sanitary and phytosanitary (SPS) policy—would make it difficult for parliamentary processes to keep pace.
Although in principle Parliament would retain formal scrutiny mechanisms over secondary legislation used to implement alignment, in practice these procedures offer limited ability to shape or reject the substance of rules originating externally. Without a dedicated specialist committee and early-warning system for EU developments, Parliament’s capacity to monitor, understand, and respond to regulatory changes would be significantly weakened.
The Government has made clear that it is seeking broad powers to implement future UK-EU agreements — particularly in areas involving legal and regulatory alignment. It expects continuing negotiations and future deals with the EU in various areas. The European Partnership Bill is therefore intended to create a long-term system that allows future UK-EU agreements to be implemented more quickly, without requiring entirely new Acts of Parliament each time. It would therefore create a mechanism for increasing UK alignment with EU rules over time.
The constitutional issue is not simply that the proposed European Partnership Bill may contain delegated or “Henry VIII” powers, because such powers already exist in UK constitutional practice and have been used extensively before, including during Brexit. The more significant constitutional question concerns the purpose, direction and long-term effect of those powers.
The Bill would create a legislative framework enabling ministers to implement future UK-EU agreements and regulatory alignment measures through delegated or secondary legislation. In practice, this would create powers to “fast-track” the incorporation of EU-related rules into domestic law in areas connected to future UK-EU agreements, including sanitary and phytosanitary (SPS) measures, emissions trading, and potentially other sectors. Parliament would therefore enact primary legislation granting ministers powers to implement or domesticate EU rules on a case-by-case basis through delegated legislation, while also establishing a broader framework for continuing future alignment measures.
Because EU measures adopted under dynamic alignment arrangements would need to be transposed into UK law, the proposed legislation would likely contain broad delegated powers enabling ministers to amend domestic legislation in order to implement future UK-EU obligations. These may include so-called "Henry VIII powers", allowing ministers to amend primary legislation through secondary legislation.
However, the constitutional concern is not merely the existence of such powers. Parliament routinely delegates legislative authority to ministers in order to implement or operationalise legislation. The issue instead concerns the breadth of the powers, the safeguards attached to them, and what they are ultimately being used to achieve.
The constitutional sensitivity therefore lies in the scope of the powers, the policy areas covered, the degree of ministerial discretion, and the level of parliamentary scrutiny. Important questions include whether the powers are narrowly confined to technical implementation or broad enough to facilitate substantive policy change; whether there are clear statutory limits and conditions governing their use; and whether the regulations would be subject to the affirmative or negative parliamentary procedure.
Under the affirmative procedure, regulations must be debated and approved by Parliament before coming into force. Under the negative procedure, regulations automatically become law unless Parliament actively annuls them, often without any debate or vote. The level of scrutiny attached to these delegated powers is therefore central to their constitutional significance.
In practice, however, parliamentary scrutiny of statutory instruments is already relatively constrained. Even where affirmative procedures apply, Parliament would have limited ability to alter the substance of measures derived from EU legislation. A significant body of regulatory rules could therefore be shaped externally and then incorporated domestically with minimal scope for parliamentary resistance.
The use of Henry VIII powers in the context of EU-related legislation is not unprecedented. Section 2(2) of the European Communities Act 1972 constituted a significant Henry VIII power, enabling ministers to implement EU obligations through statutory instruments. In practice, this allowed large areas of EU law to enter the domestic legal order without primary legislation on each occasion.
Similarly, the European Union (Withdrawal) Act 2018 granted ministers broad delegated powers to amend primary legislation in order to address deficiencies arising from Brexit and to ensure the functioning of retained EU law after exit day.
The present constitutional concern arises from the possibility that similar mechanisms may now be used in the opposite direction — not to dismantle EU alignment, but progressively to facilitate renewed regulatory alignment with the European Union. As presently understood, the proposed legislation may grant ministers powers to implement future UK-EU agreements and dynamically align domestic law with evolving EU rules through delegated legislation across an expanding range of sectors.
This would amount, in practical terms, to using delegated legislation not to deliver Brexit, but progressively to reverse aspects of Brexit through ongoing regulatory alignment and the incorporation of EU-related rules into domestic law without repeated primary legislation. The constitutional significance therefore lies not merely in the existence of delegated powers, but in the direction, purpose and scale of the policy changes they are being used to facilitate.
Parliament repealed the European Communities Act 1972 as part of the Brexit constitutional settlement, with the stated objective of restoring legislative autonomy and parliamentary sovereignty. However, proposals for broad delegated powers designed to implement future UK-EU agreements, particularly where these involve dynamic alignment with evolving EU rules, risk recreating mechanisms with effects comparable to section 2(2) of the 1972 Act. Ministers would again be empowered to update domestic law through secondary legislation in order to maintain alignment with evolving EU obligations.
The key constitutional difference is therefore one of direction. During Brexit, delegated powers were primarily justified as temporary, technical or transitional mechanisms designed to facilitate legal separation from the EU. Under a reset model based on dynamic alignment, delegated powers could instead become instruments of continuous regulatory convergence with an external legal order. Ministers would not merely be correcting or replacing legislation, but updating domestic law on a continuing basis in response to changes in EU law.
This creates a constitutional shift in practice. Delegated legislation would move from being a tool of domestic legal correction into a mechanism for ongoing convergence with EU law, where substantive regulatory changes are increasingly shaped by external developments rather than autonomous domestic legislative choice.
The European Partnership Bill goes to the very heart of what the British people voted to restore: parliamentary sovereignty. At its core lies the constitutional question of who governs this country and who makes its laws. The purpose of leaving the EU was to return democratic accountability to Westminster, so that the laws governing the UK would once again be determined by elected representatives answerable to the British electorate, rather than by institutions beyond democratic control in Brussels.
Yet this bill will create a framework through which large areas of policy may once again become subject to external legal and regulatory influence. Through ongoing alignment, delegated powers, and the implementation of future agreements by secondary legislation, ministers are constructing a mechanism for the gradual re-entanglement of the UK within the EU’s legal and regulatory order.
The European Partnership Bill raises significant constitutional concerns because it is expected to be introduced before Parliament has sight of the final UK-EU agreements to which it would relate.
While the detailed implementation of any future UK-EU agreement would likely occur through secondary or delegated legislation once an agreement has been concluded, the Bill itself would establish the legal framework and delegated powers necessary to give domestic effect to those future obligations. Parliament could therefore be asked to approve a framework enabling ministers to implement obligations arising from agreements whose final terms remain unknown.
In practical terms, Parliament would be legislating before having full visibility of the legal, regulatory and constitutional commitments ultimately being undertaken. The Bill could provide ministers with powers to implement future obligations through secondary legislation at a later stage, meaning Parliament would first approve the mechanism through which future treaty obligations could be incorporate into domestic law, and only later encounter the substance of the obligations themselves.
There is therefore a constitutional concern that Parliament may be asked to approve broad enabling powers without fully knowing either the nature or the scope of the commitments those powers may subsequently be used to implement. This raises important questions concerning the balance between parliamentary scrutiny and executive flexibility in the treaty-making process.
Once treaty obligations have ben entered into, Parliament’s practical room for manoeuvre is often significantly reduced.
The constitutional concern is therefore not merely procedural. If Parliament approves an enabling legislative framework before seeing the final treaty texts, scrutiny may become focused primarily on implementation mechanisms rather than on the underlying question of whether the obligations themselves should be accepted in the first place. Parliament would, in effect, be granting ministers powers capable of facilitating future regulatory alignment before Parliament has had a full opportunity to assess the constitutional and political implications of the agreements that would trigger those powers.
This issue becomes particularly significant in the context of dynamic alignment. Where agreements involve continuing alignment with evolving EU rules, the enabling legislation may establish a long-term mechanism through which future regulatory obligations can progressively enter domestic law through delegated legislation, even though the precise future scope of those obligations cannot yet be fully known at the time Parliament approves the framework.
Received 9 June 2026