Alignment with EU law is easier said than done

Joël Reland outlines the key trends in UK-EU regulatory alignment and divergence over the last five years, as exlpored in our new report ‘UK-EU alignment and divergence: the road ahead‘.

After finalising the Trade and Cooperation Agreement on Christmas Eve 2020, Prime Minister Boris Johnson celebrated having “taken back control of every jot and tittle of our regulation”, promising to “set our own standards, to innovate in the way that we want”. Fast forward to early 2026, and Prime Minister Keir Starmer now argues that “if it’s in our national interest to have even closer alignment with the single market, then we should consider that.”

How to make sense of such a shift, from regulatory freedom to cleaving closer to the EU’s rulebook? Our new report seeks to answer that question by charting the UK’s regulatory journey over the past five years. It shows that – with the notable exceptions of financial services and AI – the UK has struggled to makes use of its “Brexit freedoms” to regulate differently.

On tech, early plans to radically reform data protection rules (GDPR) were dropped, while the UK has developed new rules on digital markets and online safety which greatly resemble EU acts introduced a couple of years earlier. On environmental, product and labour standards, EU-era legislation has barely been reformed, even though rules on habitats protections, vacuum power levels and working hours were major targets for Brexiters.

What explains this lack of divergence? Much is down to economics. Though the UK might be able to create ‘nimbler’ regulation than the EU, this nevertheless imposes new administrative costs on businesses which serve both Great Britain and the EU and/or Northern Ireland (which remains aligned to most EU goods law) – as they will need to conform with different rulebooks depending on which market they are dealing with.

Then there is the politics. Voters demonstrate little appetite for lower labour, social or environmental protections. The revealed preference of successive governments has been to strengthen regulation in those areas when given the chance – for instance banning single-use vapes, setting a 2030 phase-out date for petrol and diesel cars, and introducing stronger rights for trade unions and zero-hour contract workers. It has taken Brexit it to show us how European our regulatory instincts are.

But, while the UK has done little to diverge from the EU, the same is not true in reverse. The first von der Leyen Commission was a very active legislator – establishing swathes of new laws (in particular on climate, environmental and product standards) which were not replicated in Great Britain. The result of this ‘passive divergence’ is the gradual emergence of new technical barriers to GB-EU and GB-NI trade due to do differences in their respective rulebooks.

This is the backdrop against which the current government is now seeking greater ‘alignment’ with the EU – i.e. replicating EU rules in UK law in order to reduce trade barriers. As the Chancellor recently put it, “economic gravity is reality, and almost half of our trade is the EU”, promising to look at “what sectors we could have alignment in”, beyond the handful of agreements already in train (on ‘SPS’, electricity and carbon pricing).

But this alignment journey looks far from plain sailing. The report considers the challenges which Labour will face in delivering on its ambitions.

A first set are institutional. Despite the government giving itself new powers to voluntarily align with EU product regulations – in order to minimise new passive divergence – ministers are yet to use them, as Whitehall seems to lack the capacity to unilaterally replicate all but a miniscule proportion of relevant EU legislation.

Meanwhile, dynamic alignment (negotiated agreements where the UK is formally subject to EU law as it evolves) requires the UK to regularly transpose EU law onto its statute book. We are yet to see how the government plans to manage that process (a bill is forthcoming shortly), but the experience of Norway shows that this can be both practically challenging and politically controversial.

Then there are democratic issues. Under dynamic alignment, the UK will be subject to EU law over which it has no voting rights – so how will the government try and maximise its notional ‘decision-shaping’ powers to influence EU legislative processes?

It seems likely that government will try to implement as much alignment as possible via secondary legislation – to expedite processes and minimise parliamentary oversight. This means MPs will have very little power to scrutinise EU legislation being adopted, or to influence where the government chooses to align, especially as there is no longer a dedicated EU committee in the Commons. Post-Brexit control of lawmaking is being centralised not in Parliament, but in the hands of the executive.

The devolved governments, too, have little ability to shape Westminster’s decisions on alignment, even though much of it falls into their areas of competence (such as environment and agriculture). For the time being, they have made little fuss about this, mainly because they are in favour of closer EU alignment, but this could change should they feel systematically excluded from decision-making, or if there is political capital to be made from pushing Westminster to go further and faster.

Which brings us, finally, to the question of whether Labour will be successful in delivering further alignment with the EU, beyond the set of negotiations currently in train. The chief problem is that the EU will not allow the UK to continuously ‘cherry pick’ further privileged access to its single market unless it is willing to accept conditions like free movement of people and EU budget payments. Even then, the Commission might be reluctant to enter talks if it fears the next UK Prime Minister will rip up whatever is agreed.

If one clear conclusion can be drawn, it is that the UK’s relationship with the EU is far from settled – and nor is it likely to be any time soon. It took Switzerland half a century to reach the model of relationship which is today looked upon with such envy by many in the Labour Party. And, as Ulf Sverdrup and Nick Sitter write in their chapter on Norway’s EU relationship, ‘alignment with the EU is a continuous, demanding process of adaptation that requires constant political attention and administrative capacity’.

Ironically, Brexit means the UK has to spend more time thinking about EU regulation now than it did as a member state.

By Joël Reland, Senior Researcher, UK in a Changing Europe.