Eleonor Duhs, partner and head of Data Privacy at Bates Wells LLP, provides an overview the Retained EU Law Bill and its implications for Lexis Nexis.
On 22 September 2022, the government introduced to parliament the Retained EU Law (Revocation and Reform) Bill. Referred to previously as the ‘Brexit Freedoms Bill’, the legislation intends to ‘put the UK statute book on a more sustainable footing’ post-Brexit, by ending the special status of retained EU law under UK law. The Bill contains a complex mix of provisions and powers to revoke, amend, replace, restate or ‘assimilate’ retained EU law, with a sunset provision aimed at ensuring the process is completed by a fixed deadline.
The full analysis was originally published here by Lexis Nexis.
What is the policy background to this Bill?
The Retained EU Law (Revocation and Reform) Bill implements policies set out in the Benefits of Brexit report published in January 2022. The report stated that when the UK left the EU it had been ‘necessary in the short-term to save a lot of EU law to provide legal certainty’. However, the government now intends to ‘go further’ and to ‘amend, replace or repeal all the retained EU law that is not right for the UK’. The explanatory notes state that the Bill will ‘increase business certainty by setting the date by which a new domestic statute book, tailored to the UK’s needs and regulatory regimes will come into effect’.
What are the key provisions?
This Bill seeks to:
- sunset most retained EU law by the end of 2023 (see clause 1(1))
- rename any retained EU law remaining on the statute book ‘assimilated law’ (see clause 6)
- change the way in which assimilated law is interpreted by removing the general principles of EU law as an aid to interpretation and ceasing the application of supremacy (see clauses 4 and 5)
- provide ministers with wide-ranging powers to restate, revoke or replace retained EU law or assimilated law (see clauses 12–15)
- enable the courts to depart more easily from retained EU case law (see clause 7)
What are the parameters (ie in terms of the volume of legislation/laws in scope)? Are there any notable exclusions?
The government’s retained EU law dashboard contains over 2,400 pieces of legislation in over 300 policy areas across 21 sectors of the UK economy.
The sunset applies to most of that legislation but not all—domestic primary legislation is not subject to the sunset. However, all retained EU law that remains on the statute book (including domestic primary legislation) will become ‘assimilated law’ and will be stripped of EU methods of interpretation, such as using the general principles as an aid to interpretation.
Certain policy areas are excluded from the scope of the Bill. Changes relating to tax will be made through a Finance Bill or through secondary legislation. Changes related to financial services will be implemented through the Financial Services and Markets Bill.
What are the key dates?
At the end of 2023 retained EU law will either be automatically revoked or become ‘assimilated law’.
Ministers will be able to legislate before the end of 2023 to preserve an instrument or a provision of retained EU law that would otherwise be subject to the sunset (see clause 1(2)). Use of this power would be appropriate where no change to the policy provided for in the legislation is desired. The relevant legislation would still become assimilated law at the end of 2023.
The Bill provides ministers with a power to delay the sunset for specified legislation beyond the end of 2023, but no later than the end of 23 June 2026 (see clause 2). The intention is that this power will be used where changes to the legislation are required but the deadline of the end of 2023 gives ministers insufficient time to make the relevant changes.
There is potential for these dates to change during the Bill’s passage through Parliament.
What does the Bill say about EU rights and principles, and the principle of supremacy of EU law?
The default position is that EU rights, the general principles of EU law and the principle of the supremacy of EU law will all be removed from the statute book by the end of 2023 (see clauses 3–5). However, ministers are given extensive powers to legislate to create equivalent effects in domestic law (see clauses 12–14).
How does the Bill deal with EU case law? What does this mean for UK courts?
The Bill aims to ensure that domestic courts are more easily able to depart from retained EU case law. It sets out new tests to be applied when the Supreme Court, the High Court of Justiciary and appeal courts are considering whether to depart including the extent to which retained EU case law restricts the proper development of domestic law (see clause 7 which inserts new section 6(5)(c) into the European Union (Withdrawal) Act 2018 (EU(W)A 2018)).
The Bill also sets out a new reference procedure enabling lower courts to refer points of law relating to retained case law to higher courts (see clause 7 of the Bill and new section 6A of the EU(W)A 2018).
The Bill also includes new processes enabling UK and Devolved Law Officers to intervene in cases which deal with retained case law (see clause 7 of the Bill and new sections 6B and 6C of the EU(W)A 2018).
What is the scope for variation between the devolved administrations? Does the United Kingdom Internal Market Act 2020 limit this scope?
The devolved administrations are able to legislate using powers in the Bill provided the relevant provision is within legislative competence (see Schedule 2). Concerns have been voiced that this may mean that ministers of the Crown and the devolved administrations could take a different approach to regulatory standards. The United Kingdom Internal Market Act 2020 would preclude devolved administrations from preventing products manufactured to lower standards being imported into in their region.
What is the impact of this Bill for UK lawyers? Are there particular practice areas you expect to see significant reform/deregulation?
Concerns have been raised about lowering regulatory standards including in the context of food, employment law and environmental law. The timeframes set out in the Bill coupled with the lack of any requirement for ministers to consult on changes may mean that legislation is made at speed without stakeholder input. This will mean that lawyers and their clients may have to deal with significant uncertainty and a fast-changing legal landscape.
What are the next steps and key takeaways at this stage?
The Bill has been introduced in the House of Commons and will need to proceed through all its stages in that House before moving to the House of Lords. It is likely to receive a difficult passage through the House of Lords.
What are your overall impressions of the Bill?
The Bill as currently drafted represents an enormous and unprecedented transfer of power from Parliament to the Executive. Enabling ministers to allow a huge body of law to lapse without any Parliamentary scrutiny is profoundly undemocratic. Undertaking a massive legislative programme at pace and without proper Parliamentary oversight or stakeholder engagement creates significant risks of errors, omissions, and gaps in the statute book.