Retained EU Law (Revocation and Reform) Bill 2022-23

The Retained EU Law (Revocation and Reform) Bill (Bill 156) was presented to the House of Commons for its first reading on Thursday 22 September 2022. No date has yet been indicated for Its Commons second reading.

The Bill would completely overhaul a body of UK domestic law known as “retained EU law” (REUL). That body of law was created by the EU (Withdrawal) Act 2018 (EUWA) as amended by the EU (Withdrawal Agreement) Act 2020 (EUWAA) and came into existence at the end of the post-Brexit transition period (ie the end of 2020).

What is retained EU law?

Retained EU law is a form of UK domestic law. It was created to preserve the substantive law of the UK after EU law was “cut-off” as a source. The purpose of doing this was to provide legal continuity and certainty in the aftermath of Brexit, for individuals, government, businesses and other organisations.

There are (broadly) five main categories of retained EU law, the source of which was either created or preserved under EUWA 2018:

• EU-derived domestic legislation (section 2 EUWA)
  • This is legislation that was passed by Parliament, the devolved legislatures, or under delegated powers, to help implement the UK’s EU obligations
• Retained direct EU legislation (section 3 EUWA)
  • This includes EU regulations, relevant EU decisions directed at the UK, and EU tertiary legislation, but does not include EU directives
• Retained directly effective provisions of EU law (section 4 EUWA)
  • This most notably includes the direct effects of EU treaties and directives, and seeks to preserve law previously given effect automatically under section 2(1) of the ECA
• Retained EU and domestic case law (section 6 EUWA)
  • This consists of decisions of the Court of Justice of the European Union (CJEU) and UK domestic courts, whenever they adjudicated on the meaning and effect of EU law and EU-derived domestic laws
• Retained general principles of EU law (section 6 EUWA)
  • These core principles inform (among other things) the hierarchy and interpretation of laws of EU-origin, and in particular the interaction between REUL and other domestic law

Other parts of EUWA also determined:

• which parts of EU law are excluded from REUL (section 5 and Schedule 1)
• the rules for amending, revoking and replacing different types of REUL, including specifying when delegated legislation can and cannot be used (section 7)
• the form of legislative scrutiny that would apply when REUL is proposed to be amended or revoked (Schedules 7 and 8)

EUWA notably also conferred temporary delegated powers in connection with the UK’s withdrawal from the EU. These powers, among other things, allowed ministers to anticipate or correct “deficiencies” in REUL. Most of those powers expire at the end of 2022 (two years after the end of the transition period).

Why is the Government revisiting EUWA?

During the summer of 2021, the Brexit Opportunities Unit (BOU) was set-up within the Cabinet Office. Lord (David) Frost, then the Cabinet Office minister with responsibility for the BOU, indicated in two ministerial statements (one in September 2021 and one in December 2021) dissatisfaction with the constitutional settlement in EUWA, as well as broader concerns about the volume of REUL that remained on the domestic statute book.

This gave rise to a two-part retained EU law “review” within government.

• Firstly, departments would audit the REUL impacting their areas of responsibility, and identify where REUL should be removed, replaced or updated. This (still ongoing) audit led to the creation of the government’s Retained EU law dashboard.
• Secondly, the government would revisit the EUWA settlement, amending it with primary legislation, to address some of its constitutional concerns about REUL.

Although this Bill was developed by the Cabinet Office, the responsible Minister in the Commons is the current Secretary of State for Business, Energy and Industrial Strategy, Jacob Rees-Mogg. He had previously succeeded Lord Frost as the minister with responsibility for the Brexit Opportunities Unit in February 2022. It is understood that responsibility for this Bill moved from Cabinet Office to BEIS following the change of Prime Minister, and this is expected to be reflected in other machinery of government changes.

What were the Government’s constitutional concerns

Lord Frost outlined the Government’s main objections to the EUWA settlement in a ministerial statement in December 2021:

1. That REUL often replicated and overlapped with domestic legal schemes, which had the potential to cause confusion and uncertainty
2. That the general principles of EU law were of questionable relevance to UK law in a post-Brexit world
3. That too much retained EU law was (on one view) effectively given the same status and protection in domestic law as primary legislation (making it harder to amend or repeal otherwise than by further primary legislation)
4. That the continuing role for the supremacy of EU law, even in a modified form, was inconsistent with the UK’s democratic and parliamentary traditions
5. That it was not justified to give CJEU case law an elevated status in UK law (post-Brexit) that would not also be given to the case law of other “foreign” courts
6. That there needed to be greater flexibility to remove REUL quickly if the EU law from which it was derived has subsequently been declared invalid by the CJEU
7. That guidance to courts, and the role of EU law in legal education, should be reviewed in light of Brexit and the aforementioned proposed changes

What does the Bill do?

The current Bill goes considerably further than was indicated in the December 2021 ministerial statement. It completely overhauls the constitutional architecture of REUL, making it (on the whole) much easier to revoke, modify or replace through secondary legislation. The Bill, most notably would:

• place a “sunset” on REUL – causing most, but not all, of it to expire at the end of 2023
• enable, via statutory instrument, most REUL (if it takes the form of legislative instruments) to be exempted from the sunset
• enable the “sunset” to be postponed (for some but not all REUL) until as late as 23 June 2026, via statutory instrument
• rename any remaining retained EU law after 2023 “assimilated law”
• formally abolish, for wholly domestic law purposes, the principle of supremacy and other general principles of EU law after 2023
• enable the effects of supremacy and general principles of EU law to be preserved or recreated in specific cases, via statutory instrument
• give the UK courts a new legal framework for reconciling inconsistent sources of law when they include those of EU origin, which ministers can influence via statutory instrument
• grant a suite of delegated powers to UK ministers and devolved authorities to revoke, restate, replace or update REUL/assimilated law by statutory instrument
• remove or downgrade existing forms of Parliamentary scrutiny of statutory instruments when they propose to modify or revoke law of EU origin
• expand the permitted use of Legislative Reform Orders (LROs) so that they can revoke retained direct EU legislation
• abolish the Business Impact Target in the Small Business, Enterprise and Employment Act 2015 (SBEEA)

What is the significance of these changes?

It is difficult to assess the impact this Bill will have on the substantive law of the UK. If it is enacted, and nothing is done legislatively thereafter, vast reams of REUL would fall away at the end of 2023. This would create precisely the “gaps” in domestic law the EU (Withdrawal) Act 2018 was designed to avoid. This is a very unlikely outcome, however.

It is more plausible that the different powers in the Bill, to preserve, restate, replicate, revoke, replace and update parts of REUL, will be used extensively before the end of the sunset period. What is difficult to predict, however, is exactly how those powers will be used, and which powers the UK Government (and devolved authorities) will rely on most heavily. The complexity of the new legislative regime could create some degree of legal uncertainty in policy areas heavily impacted by REUL.

This Bill would enable far more decisions about the content of REUL to be taken by the UK and devolved executives, rather than by legislatures. Moreover, to the extent legislatures are still involved, those decisions would be taken with less oversight than there is at the moment. Organisations including the Hansard Society and Public Law Project have expressed concerns about Parliament being marginalised.