Nine months until retained EU law disappears

At the end of 2023 “retained EU law” – the body of EU-derived law that was adopted in the UK following Brexit – will disappear from the UK statute book. 

The Retained EU Law (Revocation and Reform) Bill (the REUL Bill) goes to its report stage in the House of Lords on 19 April and is expected to receive Royal Assent by June. It provides for the revocation of EU-origin regulations and principles of interpretation at the end of 2023. However, the REUL Bill has lots of exclusions and powers for ministers to preserve EU-derived law, so the picture is not quite as rosy or as alarming (depending on your point of view) as the headline suggests. 

What's in a name?

“Retained EU law” will literally no longer be part of UK law after 2023. This is because the REUL Bill provides for all types of retained EU law that survive after the end of 2023 to be renamed and known as “assimilated law”. The substance of much retained EU law may continue to apply beyond January 2024, however, depending on the steps that the government takes to maintain the status quo. 

This is because the REUL Bill:

• does not automatically revoke provisions contained in primary domestic legislation (such as Acts of Parliament, as contrasted with secondary legislation such as statutory instruments);
• allows ministers to preserve specific pieces of secondary legislation;
• allows ministers, for specified categories of legislation, to postpone the end-2023 revocation date (the “sunset date”) to a later date, but no later than 23 June 2026 (this is the 10 year anniversary of the Brexit referendum);
• allows for specific EU case law or other principles that have effect on the interpretation of domestic law to be codified into domestic law;
• provides broad powers for ministers to restate or replace retained EU law (and assimilated law); and
• does not apply the sunset to financial services legislation (although it will remove the application of EU case law and interpretative principles that apply to such legislation) – this is because a separate programme of financial services reform will be enabled by the Financial Services and Markets Bill currently going through Parliament.

The reform process

The process for reform under the REUL Bill gives rise to a number of concerns. The government has deliberately chosen to impose a challenging timeframe. The size and complexity of the body of retained EU law (the term has a very broad definition and includes laws which originated as UK domestic policy rather than being “imposed” by the EU) mean that the task of reviewing and reforming it is commensurately large. Even if the sunset date is postponed, the final deadline of June 2026 will still imply a large programme of reform in a relatively short time frame. The making of reforms through the use of ministerial rule-making powers will provide limited opportunities for stakeholder consultation and Parliamentary scrutiny. 

Even identifying the body of retained EU law that is affected is a challenge. The Government has tasked all departments to review and identify relevant law and to list it on a public dashboard – first published in June last year. The automatic sunset provisions mean that there is a risk of legislation being allowed to lapse by mistake. The original dashboard was by no means complete and although it has been updated, a further substantial update is expected imminently. 

There is currently no roadmap setting out whether the government intends to preserve, reform or revoke the legislation identified in the dashboard. Although the government has promised to preserve EU standards in a number of areas – for example, employee health and safety and environmental standards – it has so far made few specific commitments. 

Policy decisions and impacts

Unlike the “EU exit” regulations which were passed to amend EU law at the end of the Brexit transition period, regulations under the REUL Bill will involve substantive policy decisions (the exit regulation powers were limited to the technical exercise of ensuring workability of the law once the UK was outside the EU). The reform process may put pressure on resources for those government departments that deal with large bodies of EU-derived law. In areas of law, such as environmental regulation, which are within the devolved competences of Scotland and Wales (the sunset date does not apply to Northern Ireland instruments), divergences of approach may give rise to UK internal market tensions.

The government has said that it may codify certain provisions of EU case law, EU Treaty provisions or other principles to which UK law has been subject until now. Where it does not do so, or does not do so exactly, there will be uncertainty as to the impact of removing provisions that currently underpin domestic law. These issues are not merely academic. They can have a real impact on everyday matters such as rules on equality of pay, calculations of holiday pay, or taxes payable. 

Businesses will potentially have to grapple with hundreds of new regulations that replace or restate retained EU law. Although there is a provision in the Bill that replacement legislation should not result in a greater overall net regulatory burden on business in the relevant subject area, some changes could result in new obligations. Businesses will also want to make sure that they are aware of any changes that can reduce their compliance burden.