Revoking and reforming Retained EU Law – a new Bill

Just before the Conference Recess, the UK Government introduced a long-promised Bill dealing with the revocation and reform of Retained EU Law. Titled the Retained EU Law (Revocation and Reform) Bill (the Bill) it will, amongst other things, remove what the UK Government calls the “special status” of Retained EU Law.

Background

To ensure legal continuity following the UK’s exit from the EU much of the EU law which applied in the UK was copied across to the UK statute book. Many pieces of this body of law were amended to ensure they functioned correctly in a UK-only context (e.g. removing the name of an EU regulator and replacing it with its now UK equivalent). 

However successive UK Governments have spoken about a longer-term plan to look more at the substance of this law and go beyond a simple correcting exercise. The UK Government conducted a review into the status and substance of Retained EU Law. This resulted in a helpful Retained EU Law Dashboard and helped inform the contents of this Bill.

The Bill

The Bill as introduced at its first reading is complex and given many of its sections amend the EUWA 2018 (itself a complicated Act) it can be difficult to see at a first read some of the key policy aims.

Amongst other things in the Bill, some of the key provisions include:

• The headline grabbing opening section deals with what the Bill calls a sunset clause. It will, from the end of 2023, remove from the statute book EU-derived subordinate legislation and retained direct EU legislation. There are special provisions allowing a Minister to preserve certain pieces of legislation and to extend the sunset for certain specified pieces of legislation beyond this date up to 23 June 2026. Any of this type of law which remains on the statute book will be assimilated onto the UK statute book;
• Financial services law is generally excluded from the sunset clause, as it is being dealt with separately under the Financial Services and Markets Bill 2022-23 (see this post from my colleague Andrew Marsh);
• A similar sunset provision for retained EU rights, powers and liabilities which accrued under ECA 1972;
• The abolition of the principle of supremacy of EU law and the general principles of EU law. The Bill will also reverse the order of priority of legislation, to reinstate domestic law as the highest form of law on the UK statute book (this can be altered in certain circumstances, if needed);
• A redesignation of Retained EU Law after the end of 2023, where it will be known as “assimilated law”;
• Provide domestic courts with greater discretion to depart from retained case law;
• Remove some of the restrictions on amendment for certain types of Retained EU law to allow it to be amended more easily; and
• Wide powers to amend, restate and replace Retained EU Law / assimilated law.

The Bill is wide-ranging and contains many powers which are granted to Ministers. It is likely that much of the body of Retained EU Law will be amended and restated before the sunset clause kicks in. A question is likely to arise as to how much time this will take given wide-ranging policy decisions and detailed drafting will be needed. Indeed the Government’s press release states:

“Government departments and the devolved administrations will determine which retained EU law can expire, and which needs to be preserved and incorporated into domestic law. They will also decide if retained EU law needs to be codified as it is preserved, in order to preserve policy effects the Government intends to keep.”

We will continue to monitor the Bill as it progresses through Parliament.