The Retained EU Law Bill: preparing for the unknown

The Retained EU Law Bill, if and when it becomes law, will significantly change the UK’s legal landscape, allowing ministers to easily replace or remove “retained EU law” that has remained on the statute book since Brexit. The Bill has proved very controversial, with a number of business groups and even the Law Society lobbying for significant amendments.

While some media reports suggest that this bill may be shelved until after the next general election, officially the message from government is that it is still pushing ahead with the changes. In this article, we look at the Bill in its current form and its potential impact. This is part of a series of articles produced to help you navigate the uncertainty it poses.

“Retained EU law” (REUL)

Retained EU law is a concept that was created by the European Union (Withdrawal) Act 2018. Retained EU law is essentially a snapshot of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020. Under the Withdrawal Act it continued to apply to domestic UK law, softening the immediate impact of Brexit on our legal system.

Brexiteers have long been pushing for a more dramatic separation from EU laws, which they have got in the form of the Retained EU Law Bill. This was designed by Jacob Rees-Mogg and passed through the House of Commons earlier this year, despite vocal opposition from business leaders, legal experts and environmentalists.

The three categories of retained EU law, as set out in the Withdrawal Act are:

• EU-derived domestic legislation
  Domestic primary or secondary legislation that transposed EU obligations, including EU directives, into domestic law
• Direct EU legislation
  EU regulations, EU decisions and EU tertiary legislation that was directly applicable in the UK when it was an EU member state
• Other directly effective provisions of EU law
  Rights, powers, liabilities, obligations, etc that were directly effective in UK law when the UK was an EU member state

The Withdrawal Act also preserved the supremacy of retained EU case law over domestic laws in respect of laws enacted before the end of the Brexit transition period (ie before 31 December 2020).

Gradual departure from EU law

The government has already used primary legislation to implement changes to some retained EU law. Some of these have been small (you may have spotted the removal of the phrase “or other member states” from domestic legislation), and some have been significant (for example removing EU State Aid law and replacing it with a UK-specific Subsidy Control regime: on which, see our article here). 

While the ability to amend retained EU law exists, the Conservative government have argued that more systemic changes were needed, hence the Retained EU Law Bill.

Sunsetting of retained EU law

The Retained EU law Bill takes a much more dramatic approach. Instead of maintaining the status quo (retained EU law continuing to apply unless legislation is expressly passed that provides otherwise) the Bill flips the approach: it will revoke, or “sunset”, all REUL which falls into the following two categories at the end of 2023, unless specific exemptions are granted:

• EU-derived subordinate legislation
  

  Legislation passed (or modified) in the UK for the purpose of implementing EU law.*

  *note that primary legislation (essentially Acts of Parliament) are excluded from this definition.
• Retained direct EU legislation
  EU regulations, decisions and law that were directly applicable and binding in the UK, without the need of UK-specific legislation.

Ministers have the power to delay the sunset date until 23 June 2026 at the latest. 

Exemptions to the sunset provisions

Ministers have the power to make exemptions to the sunset provisions. Any instruments or provisions that are exempted would become part of “assimilated law” after the end of 2023. 

To do this properly requires a careful consideration of all retained EU law to determine what can remain and what can be revoked. 

To date, only 17.9 per cent of retained EU law has been reformed. That leaves a huge task still to go. By the government’s own projections, that requires the review of at least 3,074 named pieces of legislation. And this is not an exhaustive list: more legislation will come out of the woodwork in due course. For example, from a quick skim of the government’s dashboard on retained EU law, we are aware of at least one (The Re-use of Public Sector Information Regulations 2015) that is missing as at today’s date.

The speed of the required review and the lack of parliamentary scrutiny in making amendments to, or removing, existing retained EU law, could have a significant impact and lead to a long period of legal uncertainty for businesses and organisations based and / or operating in the UK. 

Abolition of supremacy of EU law

Any retained EU law that is expressly kept on the UK statute books will be referred to as “assimilated EU law” post the (eventual) sunset date. 

Clause 5 of the Bill provides that domestic primary or secondary legislation will always take priority over assimilated EU law if there is a conflict between the two. The Law Society is particularly concerned about this element of the Bill, believing it would:

• Encourage the courts to depart from retained case law more often, and
• Result in large amounts of law being changed in a short space of time.

Again, this would create confusion and reduce legal certainty in respect of UK laws.

What to do?

The rule of law requires law to be accessible, clear and predictable. Looking ahead to the beginning of 2024, the UK legal system could be none of these things.

Trying to mitigate against the damage that could be caused by the uncertainty, we are producing a series of articles considering the impact the Retained EU Law Bill might have on a number of key areas, including: consumer law, IP law and commercial contracts. We will endeavour to assess what the impact could be and, if possible, provide some practical tips and steps that organisation could take now to be in the best position to weather such uncertainty.

If you require further information about anything covered in this briefing, please contact Jane Randell or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2023