What powers do ministers have to reform retained EU laws?

Leigh Gibson

The Retained EU Law (Revocation and Reform) Act 2023 (the REUL Act) gives UK ministers and devolved authorities broad powers to revoke, replace and reform retained EU laws (REUL). They must be satisfied that any changes do not increase the overall regulatory burden for those implementing them, such as businesses and public authorities.

This Insight provides an overview of the powers contained in the Act, when they expire, and their scope and purpose.

It also reports how many times each power has been used in the 20 statutory instruments made or to be laid under the Act between receiving Royal Assent on 29 June 2023 and the beginning of December 2023.

Restatement power (sections 11 and 12)

Sections 11 and 12

The section 11 power allows ministers (and devolved authorities) to restate most REUL (excluding primary legislation). This means they can write a new domestic statutory instrument to replace a piece of REUL while ensuring the policy remains largely unchanged. This power cannot be used after the end of 2023.

After the end of 2023, any REUL that has not been revoked, amended or replaced will be known as ‘assimilated law’. Ministers can restate assimilated law (excluding primary legislation) through the section 12 power. This power cannot be used after 23 June 2026.

The section 11 power has been relied on in nine of the 20 statutory instruments so far made or still to be laid under the REUL Act and the section 12 power only once.

The legal effects of assimilated law

Under the REUL Act, all REUL remaining on the UK statute book at the end of 2023 will become assimilated law. The content of this law remains unchanged, but its legal effects differ from the REUL it replaces. The following legal effects associated with REUL do not apply:

the supremacy of REUL over other types of conflicting domestic law,
‘general principles of EU law’, which currently inform how REUL should be interpreted and applied,
‘directly effective’ EU rights, which individuals can rely on in their domestic courts.

What does the restatement power allow?

The restatement power in sections 11 and 12 allows ministers to reproduce the legal effects associated with REUL in an individual piece of restated REUL or assimilated law, but only if they do so explicitly. The restated law can also include relevant case law of the EU Court of Justice.

A restatement does not have to replicate the exact wording of the REUL or assimilated law being restated. Ministers can use different wording and concepts and include other changes they consider “appropriate” to resolve ambiguities, remove doubts or anomalies, or make the law clearer and more accessible.

Once a law has been restated, it is no longer REUL or assimilated law so cannot be amended, revoked or replaced using other powers under the Act.

Revocation and replacement power (section 14)

This power allows ministers to revoke or replace most REUL or assimilated law. It cannot be used after 23 June 2026.

Ministers can make a replacement law which might either:

achieve the same or similar objectives as the law being replaced; or
make alternative provision that they consider appropriate.

In both cases, ministers must be satisfied that the overall effect of any changes made in the replacement law avoids increasing the regulatory burden.

The section 14 power has been relied on in 10 of the 20 statutory instruments so far made or to be laid under the REUL Act.

Compatibility power (section 7)

The REUL Act ends the general principle of the supremacy of EU law over domestic law at the end of 2023. It also provides that any retained direct EU legislation (such as an EU Regulation) must give way to domestic law if the two are incompatible.

The power in section 7 enables ministers to reverse this rule by making regulations which specify that a piece of retained direct EU legislation (or certain provisions in it) shall overrule a specific domestic law if the two are incompatible.

This power cannot be used after 23 June 2026. It has not been relied on in any of the 20 statutory instruments so far made or to be laid under the REUL Act.

Updating power (section 15)

This power allows ministers to update most REUL, assimilated law, and laws which have been restated or replaced under sections 11, 12 and 14 of the Act to take account of changes in technology or developments in scientific understanding.

This power has no expiry date. It has not been relied on in any of the 20 statutory instruments so far made or to be laid under the REUL Act.

Consequential provision power (section 19)

This power allows ministers to make any changes to domestic law that they consider appropriate as a consequence of the REUL Act being passed.

This power has no expiry date.

It has been cited in one of the 20 statutory instruments so far made or to be laid under the REUL Act.

Scope of powers (section 20)

Section 20 clarifies that ministers can use the powers in the Act to make:

“different provision for different purposes or areas”, or
“supplementary, incidental, consequential, transitional, transitory or saving” provision.

This power has been cited in 16 of the 20 statutory instruments so far made or to be laid under the REUL Act.

How have the powers in the REUL Act been used so far?

Most of the statutory instruments that have been made or are still to be laid under the REUL Act are intended, according to the Government’s explanatory memoranda, to maintain the status quo and avoid any substantive policy changes. For example, they:

save directly effective EU rights which would otherwise cease to apply in the UK after 2023 and/or codify important EU-derived case law
tweak REUL so it is better tailored to the UK context
consolidate REUL
extend a post-exit transition period
revoke redundant law

How much would these statutory instruments change the law?

It is difficult to judge how much each statutory instrument would change the law. For example, if a statutory instrument restates some REUL using different wording or writing in bits of EU case law, it may not be obvious whether the restatement accurately replicates all the legal and policy effects of the original law.

Even in cases where the Government might not intend to make substantive legal or policy changes, some change may nonetheless be inevitable.

For this reason, the Commons European Statutory Instrument Committee – which examines certain statutory instruments laid under the REUL Act – recommended in October that the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023 should be “upgraded” to ensure they were debated and approved by the Commons.

The committee said it could not be sure if the regulations would replicate the current position, as intended, or whether there might be “a diminution of rights in practice”.

Only two REUL Act statutory instruments so far relate directly to the Government’s post-Brexit vision for regulation set out in its May 2023 policy paper, Smarter regulation to grow the economy: one on reform of the wine sector, the other on retained EU employment law reforms.