Retained Law (Revocation and Reform) Bill 2022

Retained EU Law (Revocation and Reform) Act 2023 receives Royal Assent

Introduction

After a lengthy process hindered by disagreements and amendment, the Retained EU Law (Revocation and Reform) Bill was granted Royal Assent on 29 June 2023 (“the REUL Act”) and will bring about significant changes to how retained EU law (“REUL”) is interpreted and applied in the UK. REUL is domestic law currently applicable in the UK. 

The Act also empowers the Government to revoke, repeal or amend EU derived law that was retained on the UK domestic statue books immediately post-Brexit by virtue of the European Union Withdrawal Act 2018.

What does the Act do?

The intention of the REUL Act was to restore parliamentary sovereignty following Brexit and to facilitate the Government’s creation of regulations that are “tailor made to the UK’s needs”.

There will be significant changes to the way REUL will be dealt with going forward. The REUL Act makes provision for the following by the end of 2023:

• Removal of REUL’s special status in the UK
• Revocation of approximately 587 pieces of REUL
• Renaming the remaining REUL (approximately 4,200 pieces) to assimilated law
• Abolition of all directly effective rights and obligations derived from EU Treaties and Directives
• Abolition of EU law supremacy in the UK
• Cessation of general principles of EU law in the UK.

In addition, the Act grants powers to Ministers to restate, replace, revoke the remaining REUL until 23 June 2026.

The future

The REUL Act will bring wholescale changes to the legal framework for years to come. In particular: -

• Uncertainty in the common law as the interpretation process changes
• The ability of Ministers to revoke, restate or amend which can be used for primary legislation where retained REUL provisions were incorporated by secondary legislation
• The limited scrutiny of Ministers’ powers to amend, revoke or restate laws.

The main areas affected by the REUL Act are likely to include employment, health and safety laws and environmental laws. Whilst it is unlikely that the Government would move to make significant changes to fundamentally important pieces of legislation, there is little guidance about what is coming down the line.

We are continually monitoring the progress of this Act and will keep you updated as developments occur.

More changes ahead post Brexit - Assimilated law

This update was first published 20.10.23

Following our update on 15 September 2023 (here) commenting on the first Statutory Instrument to be laid under the provisions of the Retained EU Law (Revocation and Reform) Act 2023 (“the REUL Act”), we can now bring you news of another significant Statutory Instrument proposing further changes to retained EU law (“REUL”).

Background

In order to maintain the status quo and legal certainty after the UK left the EU, the European Union Withdrawal Act (“EUWA”) maintained most EU law as it applied in the UK legal system on 31 December 2020 by incorporating such law onto the UK statute book and renaming it ‘REUL’. However, it was not Parliament’s intention to retain REUL as is indefinitely, and the relevant section of EUWA that incorporated REUL will be repealed by the REUL Act at the end of 2023. This means that references to REUL will no longer be recognised in the UK’s legal system leaving a lacuna.

To provide certainty after 31 December 2023, the draft Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (“the Regulations”) was introduced on 16 October 2023 and is subject to Parliamentary scrutiny (affirmative procedure). The Regulations will come into force on 1 January 2024.

What do the Regulations do?

• Propose amendments to terminology contained in existing UK primary legislation. The REUL Act confirmed that retained EU law will be known as ‘assimilated law’ and retained EU case law will be known as ‘assimilated case law’ after the end of 2023.
• Removes references to REUL contained in primary legislation and replaces it with assimilated law.
• Assimilated law is, in essence, REUL but will not be subject to the application of EU law interpretive features applying by virtue of the EUWA.
• By renaming REUL to assimilated law, the UK Government achieve the fact that EU law no longer has supremacy in the UK and UK law is not subject to EU interpretation. In effect, restoring UK legal supremacy.
• General principles of EU law will no longer be a part of domestic UK law, meaning that the UK courts are no longer obliged to interpret assimilated law in accordance with EU law.
• The Regulations lists 107 pieces of existing primary legislation where amendments are to be made and can be viewed here.

The Regulations are not intended to make any amendments to Scottish and Welsh laws.

Comment

The never ending changes brought about by Brexit will continue to rumble on for many years to come. Whilst minds are focused on tangible changes, other changes must not be overlooked. The idea of the UK taking back control of its laws remains at the forefront, and this is a further step towards achieving that.

However, it must be stressed that whilst these Regulations change the name of REUL to assimilated law, they do not change the legal effects of the primary legislation. That remains the same. The focus of these Regulations, notwithstanding the shift of supremacy, is to tidy up the statute book. However, the relentless changes to terminology does present another hurdle to be cleared.

We continue to monitor changes and drive change where possible. We have experts who will be able to assist with not only this change but also those to come. Please don’t hesitate to get in touch with us to discuss this or any other issues you may have arising from Brexit.

More retained EU law to be revoked

This update was first published 15.09.23

It is not so long ago that the Retained EU Law (Revocation) Bill received significant objections from the House of Lords due to, amongst other things, the lack of parliamentary scrutiny of retained EU law (“REUL”) proposed for revocation. However, Royal Assent was granted and the Retained EU Law (Revocation and Reform) Act (“the Act”) took its place on the UK statute book.

Specifically, the Act authorises the creation of Statutory Instruments (“SIs”) to revoke or retain REUL that continues to apply to the UK following Brexit. Last week saw the first use of such powers when the Solicitor General, Michael Tomlinson, announced the first major revocation SI which will revoke an additional 93 pieces of REUL that has been identified as either redundant, superseded or as having no legal effect in the UK post Brexit.

The Act includes Schedule A which lists 587 pieces of REUL that are to lapse, (also known as sunsetting), at the end of 2023. The Act also empowers a Minister of the Crown to remove pieces of REUL from Schedule A before 31 October 2023 where the REUL has been included in the schedule but is subsequently discovered not to be obsolete. The SI, in accordance with this power, identifies seven pieces of REUL to be removed from Schedule A which were due to sunset as it has been found that further analysis is required.

Whilst the additional 93 pieces of REUL represent redundant legislation, the use of SIs to revoke REUL reveals, as anticipated, the speed at which changes can be made without full parliamentary scrutiny or consultation. Further, in a letter to Parliament, the Solicitor General reinforces the view that there will be many more SI coming down the line. In particular, the Solicitor General states “The steps the Government has already taken are a down payment on our plans to reform REUL and reduce the regulatory burden. This SI will be followed by further, more ambitious REUL reform such as reforms to reduce disproportionate EU-derived working time reporting requirements that could save businesses around £1 bn a year. Announcements to reduce red tape for business and improve the lives of our citizens will also follow including, on consumer transparency, transport and travel, and how the Government works with regulators to ensure they are playing their part in HMG's regulatory objectives”.

It is clear that the Government has significant reform on its mind. Whilst the current tranche of REUL revocations are benign, future SIs may not follow the same path. This could potentially cause changes to current UK laws at short notice and lead to legal uncertainty by changing not only the way the law is applied but also how the courts adjudicate. We are continuing to monitor proposed changes closely.

House of Lords makes further amendments to the Retained EU Law Bill

This update was first published 16.05.23

The Retained EU Law Bill (“the Bill”) returned to the House of Lords yesterday for its first day in Report Stage.

The House of Lords proposed and voted on amendments to the Bill as anticipated. Whilst the House of Lords approved the amendment to the sunset clause and its removal (that all Retained EU Law (“REUL)” will not potentially lapse by the end of 2023), the House of Lords remained concerned with the lack of parliamentary scrutiny of REUL going forward. In particular:

• Lord Hope of Craighead proposed an amendment that REUL contained in the Schedule (almost 600 pieces) subject to the sunset provision should be referred to a joint parliamentary committee. The committee would be empowered to debate and then vote on the REUL if it was believed that the removal of a particular piece of REUL would create a "significant change". If the revocation of any REUL was not approved by both Houses then it would be retained. This amendment was supported by the House of Lords.
• Lord Anderson’s amendment to the Bill which provided that the decision as to whether retained EU rights will be retained or not rests with Parliament, jointly with the devolved administrations in Wales, Northern Ireland and Scotland , was also supported by the Lords. The Government had wanted to solely retain this power.

These amendments are not cast in stone however. The Bill will be debated further in the House of Lords tomorrow, 17 May 2023 and will then return to the House of Commons for consideration of the amendments from the House of Lords.

The Government have also published a list of the REUL to be revoked by the end of 2023. The REUL which has been selected for revocation appears to fall into several categories:-

• Those laws which are no longer workable as a result of the UK leaving the EU or which relate to requirements that are no longer relevant to the UK as a stand alone country;
• REUL which has been considered by the Civil Service and/or ministers as “contrary to the needs and requirements of the UK”.

This Bill is far from straightforward and its passage through Parliament looks fraught with difficulties. Whilst the House of Lords are proposing certain amendments, the Government are determined to deliver on their promise to revoke REUL and regain UK parliamentary sovereignty.

We will continue to update you on the Bill as developments unravel, specifically on those pieces of REUL which may sunset at the end of 2023,  but in the meantime, please don’t hesitate to get in touch if we can assist at reul@weightmans.com.

Is it really a U-turn or just gentle application of the brakes ? Implications of the Government’s amendment to the Retained EU Law Bill

This update was first published 11.05.23

Yesterday saw the announcement by Kemi Badenoch, Business and Trade Secretary, of the amendments being tabled to the Retained EU Law (Reform and Revocation) Bill (“the Bill”) for debate in the House of Lords on Monday 15 May 2023 (the Report Stage).

The Bill, which was introduced in September 2022, proposed that all Retained EU Law (“REUL”) would lapse by 31 December 2023 (the sunset clause) unless it had been preserved or assimilated into UK law. This caused considerable concern for business and industry as not only had all REUL not been identified, it was uncertain which REUL would remain or would fall into the abyss.

It came as a welcome relief yesterday when Government announced that the sunset clause would be removed for the end of 2023 and instead, a list of approximately 600 pieces of REUL would replace it. This is in addition to the 500 pieces of REUL being revoked through the Financial Services and Markets Bill and the Procurement Bill. However, this is not the time to sit back. The Government has stated that:

“We will retain the vitally important powers in the Bill that allow us to continue to amend EU laws, so more complex regulation can still be revoked or reformed after proper assessment and consultation”.

In effect, whilst the intention is to remove the sunset clause, the power to remove the remaining REUL after 2023 will stay in the hands of Ministers and the civil service. Could we, therefore, see individual pieces of REUL revoked at very short notice after 31 December 2023?

Whilst the proposed removal of the sunset clause provides some certainty in terms of it not being the end of 2023, the uncertainty around the power to revoke further REUL together with the lack of identification of all REUL remains. As at today, the Government’s updated tracker identifies 4829 pieces of REUL which has grown considerably since the initial tracker was launched showing 2,400 pieces. However, there can be no doubt that the Government wants to reinstate the supremacy of UK law as is evidenced by the statement from Kemi Badenoch:

“We will still fully take back control of our laws and end the supremacy and special status of retained EU law by the end of 2023. We will also make our laws fit for UK purposes: reducing the regulatory burden and controlling the flow of new regulation. We will no longer tie business up in red tape.”

It is also of interest that the Government has indicated the direction of their travel in the review of REUL. Their priority appears to focus on employment laws, which is no real surprise given that the vast majority of the employment laws which we currently operate originate from the UK’s time in the EU. Kemi Badenoch said:

“As part of this drive for deregulation, today I can announce that we will make improvements to employment law which could help save businesses around £1 billion a year, while safeguarding the rights of workers. We will consult on cutting unnecessary red tape on recording working hours, streamline engagement with workers when a business transfers to new owners, and provide up to 5 million UK workers greater freedom to switch jobs by limiting non-compete clauses.”

So whilst some certainty has been provided, it must be remembered that this is a proposed amendment to the Bill which is yet to be debated. We will be watching the House of Lords Report Stage carefully and will provide further updates as the Bill continues its progress through its parliamentary journey. Additionally, the implications of the loss of those 600 or so pieces of selected legislation will still need to be carefully considered.

The Retained EU Law Bill, if it receives Royal Assent, could have far reaching implications for domestic law

This update was first published 12.04.23

The Retained EU Law (Revocation and Reform) Bill (“the Bill”) was introduced to the House of Commons in September 2022. It has passed through the House of Commons and is waiting for Report Stage in the House of Lords.

The Bill follows on from The European Union (Withdrawal) Act 2018 (“the Withdrawal Act”) which came into effect on 31 December 2020 (the end of the Brexit transition period) and effectively took all EU legislation that still applied to the UK on 31 December 2020 and incorporated it onto the UK statute book. The incorporated EU laws were named “retained EU law” (“REUL”). This was to preserve the status quo. However, the UK Government never intended for REUL to remain on the UK statute book indefinitely and the Bill is the next step.

There are currently more than 3,700 pieces of REUL. A dashboard has been compiled by UK Government showing the list of retained EU laws.

Put simply, the Bill proposes (amongst other matters) that all REUL will lapse by 31 December 2023 unless it has been preserved or assimilated into UK law. In other words, unless it has been amended or preserved, it will drop from the UK statute book. This raises concerns as the Government have only reviewed 17% of all REUL and there remains in excess of 3000 pieces of REUL to review before the end of this year.

Government departments are required to take positive action in determining which REUL is suitable to expire or be preserved. As the proposed end date is only eight months away, it would be surprising if the relevant Government departments will be equipped and able to review all REUL under their jurisdiction to establish whether it should remain on the UK statute book.

A significant amount of regulatory standards have been incorporated into the UK’s domestic legislation. There are many current UK laws that have arisen from EU entrenchment:

• Workers’ rights
• The environment
• Food standards
• Health and safety
• Aviation safety
• Data privacy
• Consumer rights

REUL relating to tax, specifically VAT, excise and customs duty will be dealt with separately under the Finance Bill.

This Bill, if it receives Royal Assent, could have far reaching implications for domestic law if certain pieces of REUL are not incorporated into domestic legislation. At this stage it is impossible to know, with certainty, what legal changes will result from the Bill, but we are currently considering the outstanding REUL and will be providing further updates as the Government departments continue their review.