Retained EU Law (Revocation and Reform) Act 2023

The Retained EU Law (Revocation and Reform) Act received Royal Assent on 29 June 2023. It makes significant changes to the domestic body of law currently known as “retained EU law”.

What is retained EU law?

“Retained EU law” (REUL) is a type of UK domestic law. It was created by the EU (Withdrawal) Act 2018 (EUWA), and came into effect at the end of the UK’s post-Brexit transition period (the end of 2020).

The primary objective of REUL was to provide legal continuity and certainty. It sought to minimise any substantive changes in UK domestic law at the point the transition period (and dynamic alignment with EU law) ended. This was achieved by preserving domestic legislation that had implemented EU obligations and by converting parts of EU law into a domestic equivalent.

Once that post-transition “starting point” had been implemented, it would then be for Parliament and the devolved legislatures to decide whether, how, and to what extent, domestic law and policy should then diverge from that of the EU. Future (mostly primary) domestic legislation would either adapt EU policy frameworks for domestic needs, or replace them entirely.

Retained EU Law (Revocation and Reform) Act

The Retained EU Law (Revocation and Reform) Act 2023 makes significant changes to the framework of REUL. At the end of 2023 it will:

• revoke all or part of 587 legislative instruments of EU-related origin (though thousands of other legislative instruments will now be kept)
• revoke all retained directly effective EU law (for example, rights and obligations formerly conferred directly under EU treaties or directives)
• revoke the modified principle of supremacy of EU law (which governs the hierarchy of laws passed before the end of the transition period)
• revoke the retained general principles of EU law (which govern the interpretation of REUL)
• rename “retained EU law” so that it will be known as “assimilated law”

Additionally the Act:

• permits and encourages lower courts more often to depart from legacy caselaw of the Court of Justice of the European Union (CJEU)
• confersbroad delegated powers to restate, replicate, revoke and replace REUL/assimilated law (those powers will expire after 23 June 2026)
• confers a power to update REUL/assimilated law in light of technological and scientific developments (these powers will not expire)
• relaxes the scrutiny rules for modifying or revoking REUL (making it easier to do using, among other things, pre-existing delegated powers)

Change of approach on the sunset clause

Originally, the Bill proposed to bring about a wholesale revocation of legislation at the end of 2023. This would have affected most (but not all):

• retained direct EU legislation (former EU regulations, decisions and tertiary legislation)
• EU-derived secondary legislation (mainly statutory instruments made under the European Communities Act 1972, but also those under other Acts that previously implemented the UK’s EU obligations)

The original Bill included powers to delay expiry and to preserve legislation but those decisions would have been for ministers to take by the end of 2023. Critics of this approach said it would lead to legal uncertainty and impose intolerable pressures on government departments/devolved administrations.

At Lords Report Stage, the Government announced a major change in approach. Instead of generically sunsetting legislation, there would be a “list”. A Schedule in the Bill would identify all of the legislative instruments the Government considered no longer to be needed, and these would then expire at the end of 2023. The rest of REUL would remain in place, but be susceptible to repeal under new delegated powers through to June 2026.

Unsuccessful Lords amendments

The House of Lords repeatedly attempted to amend the Bill, so as to increase parliamentary oversight of the expiry and replacement of REUL. There were several Government defeats in the Lords on scrutiny mechanisms for delegated powers, both in general and with a particular focus on environmental standards. However, these amendments were repeatedly rejected by the House of Commons, do not form part of the final Act.