Which retained EU laws will be revoked at the end of 2023?

Leigh Gibson

The Retained EU Law (Revocation and Reform) Act 2023 (the REUL Act), also referred to as the ‘Brexit Freedoms Bill’ when it went through Parliament, will revoke hundreds of pieces of retained EU law (REUL) at the end of 2023. This includes almost 600 pieces of legislation, listed in Schedule 1 of the Act, and and more will be revoked through statutory instruments made under the Act.

A delegated power in the Act had allowed ministers to save or preserve individual pieces of retained EU legislation ahead of the end-of-year deadline. This ‘saving’ power expired at the end of October and was used only once.

This Insight explains the approach taken in the Act to revoking and reforming REUL and how the saving power has been used to save some REUL that would otherwise have been revoked at the end of 2023.

What is retained EU law?

REUL is a special type of domestic law created by the European Union (Withdrawal) Act 2018. It was created to avoid large gaps in the statute book, which would otherwise have emerged when the UK left the EU and EU law ceased to apply in the UK.

As well as converting EU law into a new form of domestic law, that Act also carried over special features associated with EU law so that they too formed part of REUL and could be relied on in UK courts. These included:

the supremacy of REUL over other types of conflicting domestic law
the application of EU general principles to inform how REUL should be interpreted and applied
the concept of directly effective retained EU rights

Approach to revoking REUL

In the original Bill

As originally introduced, the Retained EU Law (Revocation and Reform) Bill would (by default) have revoked almost all REUL at the end of 2023, other than REUL contained in UK primary legislation (such as the Equality Act 2010).

One challenge posed by this ‘sunsetting’ approach was that there was no definitive list of retained EU laws, despite the Government’s efforts to develop an “authoritative record” in its Retained EU Law Dashboard (now in its fifth iteration).

The original Bill did include a power to save specific pieces of REUL or to delay the revocation of legislation (until no later than 23 June 2026). Despite this, there was widespread concern that a raft of retained EU laws affecting everyday life could be lost through lack of time or oversight.

There was also a risk that regulatory uncertainty – when the 2023 deadline approached – would be damaging for business and investor confidence.

Subsequent change of approach

In May 2023 the Secretary of State for Business and Trade Kemi Badenoch announced a change of approach.

The special features of EU law mentioned above would still expire at the end of 2023. For legislation, however, only the REUL listed in Schedule 1 of the Act would be revoked automatically at the end of the year. All other legislation would be kept, unless ministers subsequently used other powers to revoke, restate or replace it. Ministers could also use a power in section 1(4) of the Act to save REUL listed in Schedule 1 from being revoked.

Kemi Badenoch sought to shift ministers’ and civil servants’ focus away from a ‘safety-first’ approach. By reducing the up-front legal risk at the end of 2023, she hoped ministers would be encouraged proactively to use their powers in the Act to implement “meaningful reform”.

How has the saving power been used?

The UK Government had said that the saving power in section 1(4) of the repurposed REUL Act was only intended to be used if “absolutely necessary”(PDF).

It was a safeguard included in case legislation previously flagged for expiry needed, on reflection, to be kept. The power expired on 31 October 2023 and was used to make only one set of regulations.

What REUL did the UK Government save?

Seven pieces of REUL were saved through the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023, which were made on 25 October 2023.

The Government concluded that four of these were “not obsolete and are required to maintain the current policy position in the UK”. They concern:

the sharing of information on the roadworthiness of motor vehicles
safety investigations into marine accidents
the marketing of biocidal products containing copper.

The other three pieces of REUL, which concern information provision and promotion measures for agricultural products, will be preserved for Northern Ireland only, as requested by the Northern Ireland Civil Service.

The Explanatory Memorandum to the Regulations (PDF) indicates that this was “because their revocation represents a policy change which would require agreement by Ministers in the Northern Ireland Executive which cannot be granted in the ongoing absence of that Executive”.

Did the Scottish or Welsh Governments save any REUL?

The Scottish Government did not attempt to use the saving power. It queried whether two instruments concerning air quality listed in Schedule 1 were obsolete but said it could not use the powers in the Act to preserve them.

Although the subject matter of the instruments fell within devolved competence, the relevant provisions in them conferred functions on the UK Secretary of State, not on Scottish Ministers, and so were reserved.

The Welsh Government also did not use the saving power, noting that “no instruments were identified as giving rise to specific concerns” (PDF).