Background
To avoid legal uncertainty when the UK left the EU Single Market on 31 December 2020, most EU-derived law applying at that point was automatically incorporated into our domestic law. Subject to its international obligations, the Government is free to amend or repeal this body of law, but specific legislation is required to do so.
The UK Government has now brought forward the Retained EU Law (Revocation and Reform) Bill under which the vast majority of this retained law would fall away on 31 December 2023, unless specific measures are taken before then to preserve it.
The Bill would also change the legal relationship between domestic law and the UK’s remaining EU-derived law. In particular, the principle of supremacy of retained EU law over domestic law passed before the end of 2020 would be removed.
The Bill extends to the whole of the UK, but preserves the delegation of powers to the devolved administrations in Wales, Scotland and Northern Ireland in relation to matters within their respective legislative competence.
“Sunsetting” EU retained law
The Bill provides that most EU retained law will be revoked on 31 December 2023, subject to any exceptions stipulated in regulations made prior to that date. This principle applies not only to directly effective retained law, but also to the large body of secondary legislation which was passed prior to Brexit to implement EU directives. It is possible for ministers to extend this deadline until 23 June 2026 (the tenth anniversary of the Brexit referendum).
The idea is to force the pace at which retained EU law is scrutinised and a positive decision made about whether it should be kept, modified or discarded. Earlier this year, as the first stage in accelerating this process, the Government published a retained EU law dashboard.
The dashboard currently lists 2417 pieces of legislation comprising retained EU law of which just over 2000 remain unchanged. The sectors with the largest volume of EU-derived legislation are identified as agriculture and fisheries, transport, finance, and manufacturing (in that order). But much of the legislation applies across all sectors, notably important provisions in relation to employment rights and health and safety.
However, not all retained EU law is within the scope of the sunsetting provisions in the Bill. Key exceptions include primary legislation and most financial services legislation (which will be subject to a separate revocation process led by the Treasury).
Ending the supremacy of EU law
The Bill would also change the status of EU-derived law that the Government decides to retain.
While the UK remained a member of the EU, it was required to accept the principle that EU law took precedence over domestic law. To avoid legal uncertainty this principle has been maintained in respect of domestic law that was made before 31 December 2020.
The Government now plans to abandon this principle, though the Bill provides for a power to make specific exceptions. As a general rule, the plan is that from the beginning of 2024, domestic law would take precedence over retained EU law if there was any conflict between them.
Amending EU retained law
Under the legal framework adopted when the UK left the EU, certain safeguards were adopted to help ensure that changes to EU retained law were adequately scrutinised. The Bill includes measures to relax the procedures for amending retained EU law, to make the process easier for the Government to manage.
Constraints on repealing EU retained law
While the UK in theory has a free hand in deciding what EU-derived legislation to keep, and what to jettison, there are a number of constraints:
Practical
Given the sheer volume of legislation that needs to be scrutinised, there may be insufficient time to develop workable domestic replacements for some key EU-derived legislation in time for the deadline at the end of next year.
Political
Some rights deriving from EU retained law – for example paid holiday entitlement under the Working Time Regulations – are popular with the electorate and so the Government would need to think twice about removing them. There could also be conflicts over the scope of changes to retained law between the UK Government and the devolved administrations.
Legal
Some obligations under international treaties may constrain the Government’s freedom to act. The non-regression commitments the UK made to the EU in the Trade and Cooperation Agreement provide an obvious example of this.
Comment
If it becomes law in its present form, the Bill will introduce a new and untested regime for interpreting EU-derived law that remains part of our domestic law after the end of 2023. Many believe that this will result in increased legal uncertainty, whatever the political benefits the Government may get from ending its supremacy over purely domestic law.
There are also concerns about whether the Government has the administrative capacity to implement such an ambitious project in such a short timeframe. That said, the tight deadline may encourage the Government to adopt a conservative approach to repealing legislation that has been in place for many years, and which has had consistent cross-party support.
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