Retained EU Law: has the sun set on the sunset?

Introduction

The Retained EU Law (Revocation and Reform) Bill has completed its main stages in both the House of Commons and House of Lords. The two Houses are now undertaking ‘ping-pong’ to try and agree the final amendments.

There were several areas of focus in the latter stages of the Bill’s passage. This Blog will focus on two: (i) the removal of the wide-ranging sunset clause; and (2) the debate over parliamentary oversight and scrutiny for the revocation of retained EU rights, powers, liabilities etc.

Wide-ranging sunset gone

The most significant change has been the removal of the wide-ranging sunset provision, which as you might recall from our earlier blog, was due to revoke (with some exceptions) all EU-derived subordinate legislation and retained direct EU legislation at the end of 2023. We highlighted in that blog the uncertainty this sort of provision might cause. This has now been replaced with a targeted list of Retained EU Law (around 600 pieces of legislation) that will be revoked at the end of 2023 at Schedule 1. This was inserted to provide more certainty and visibility as to changes coming at the end of the year. A Department for Business and Trade spreadsheet lays out the reasons for the inclusion of each piece of legislation. Clause 1 also contains a power for Ministers to exclude items from the Schedule 1 revocation list.

The House of Lords had attempted to insert additional scrutiny requirements linked to this Schedule too, before items can be revoked at the end of the year. This would have included referring the legislation to a Joint Committee of both Houses of Parliament and if that committee deemed the revocation “a substantial change to UK law” a Minister must arrange for it to be debated in Parliament and voted on. If the revocation of that piece of legislation is not approved by the end of 2023, then that piece of legislation is retained. The House of Commons has rejected this but it will no doubt be discussed further when the Bill returns to the Lords on 6 June.

Revocation of retained EU rights, powers, liabilities etc

The now Clause 2 deals with the nebulous concept of what the Bill calls “Revocation of retained EU rights, powers, liabilities etc”. In its original and current form, this body of law is revoked at the end of 2023.

The House of Lords had attempted to reformulate the clause to require a Minister to make a statement to Parliament (or devolved equivalent) “identifying any rights, powers, liabilities, obligations, restrictions, remedies or procedures that the relevant national authority has decided not to restate, reproduce or replace before the end of 2023 and that it wishes to be revoked at the end of 2023”. If Parliament (or devolved equivalent) resolves that an item from that list should be retained then it is not revoked. The House of Commons has rejected this but it will no doubt be discussed further when the Bill returns to the Lords on 6 June.

Conclusion

The change from wide-ranging sunset clause to revocation schedule is a big change to the Bill’s scope. It is important to remember however that many other features of the Bill remain which seek to remove the ‘special status’ of Retained EU Law e.g. the abolition of supremacy of EU law and abolition of general principles of EU law. Interestingly the Bill will also now require Ministers (at specified intervals) to update the Retained EU Law Dashboard and report to Parliament on the revocation and reform of Retained EU Law, so we will be hearing about this topic for a while to come.