What's the issue?
Supporters of Brexit and, since the 2016 Brexit referendum, successive Conservative governments, have promised that one of the major benefits of Brexit would be the 'bonfire of red tape' following the end of EU influence on UK laws. Under the European Union (Withdrawal) Act 2018 (EUWA), however, the majority of EU-derived law was retained as at the date of the end of the Brexit transition period, and to a degree, given supremacy over UK law. Boris Johnson's government subsequently set out its plans to change the status of retained EU law in January 2022 (see here).
What's the development?
The government has now introduced the Retained EU Law (Revocation and Reform) Bill 2022-23 (REUL Bill), also referred to as the 'Brexit Freedoms Bill'. The Bill was announced in the Queen's Speech earlier this year. It gives the government the power, largely through amendment of the EUWA, to repeal, amend or "assimilate" all retained EU law (subject to certain exemptions, including for financial services and tax).
The REUL Bill provides that:
- retained EU law (EU-derived subordinate legislation and retained direct EU legislation) will be automatically revoked unless otherwise preserved, on 31 December 2023 under a 'sunset clause'. Powers are included to enable preservation of specified legislation or provisions, or to extend the revocation date to 23 June 2026 at the latest
- powers are given to restate secondary retained EU law
- after the end of 2023, any remaining retained EU law will be known as 'assimilated' law and will be stripped of EU interpretive features
- after the end of 2023, domestic law will take precedence over assimilated law but powers are included to allow supremacy of EU law in specified circumstances
- directly effective rights and obligations derived from EU Treaties and Directives and general principles of EU law will lapse after the end of 2023, but powers are included allowing the preservation of their effect where expressly specified
- domestic courts will have greater discretion to depart from retained case law with a new test for departure from retained EU case law and retained domestic case law. In areas of conflict, there will be powers for UK and devolved law officers to refer or intervene in cases involving retained case law.
Crucially, most of these powers are to be exercised under secondary legislation which means changes will not have to be introduced by Acts of Parliament but may be carried out by Ministers with a lower degree of scrutiny and debate.
What does this mean for you?
This is the real question. While the default position under the sunset clause suggests extensive revocation of retained EU law, the REUL Bill gives the government and courts wide-ranging discretion not only to repeal and amend retained EU law, but also to re-state or retain the effect of such law, including in terms of supremacy over domestic law. Stripping out the political fanfare that accompanied the introduction of the Bill, it provides flexibility (or ultimate 'cakeism'?), in a move away from the default position at the end of the Brexit transition period under the EUWA.
At this point, it's hard to know how radical the changes will be and which areas will be most impacted. Some laws may be 'assimilated' relatively unchanged or with a few minor clarifications or changes in terminology. Others may be revoked completely. Some indication as to the government's plans may be drawn from the government's 'Benefits of Brexit' paper, released in January 2022. However, we have since had a change of Prime Minister and it is unclear whether priorities have changed as a result.
If we look at the Data Protection and Digital Information Bill by way of example, many of the more radical proposals were, in the end, not included in the Bill, presumably for fear of jeopardising data exports from the EU to the UK. Other changes appear somewhat cosmetic and either do not significantly reduce the compliance burden, or even add to it for multi-nationals. Having said that, the Bill did not receive its planned second reading and has been paused while Ministers consider it further, so it may end up looking somewhat different. Similarly, the Online Safety Bill is rumoured to be undergoing significant change, while the Bill of Rights is thought to have been effectively scrapped. These may, however, not be the government's prime targets. Environmental and employment protections are seen by many as likely to be top of the government's 'hit list' when it comes to changing the impact of EU law in the UK.
It is too early to understand the full significance of the Bill but the government will certainly get considerable flexibility if the REUL Bill passes as introduced. The thrust of the REUL Bill is not unexpected, but the sunset clause deadline of the end of next year is sooner than anticipated.This means the government will have limited time to decide policy on a vast range of retained EU law, so we should start to see details emerging fairly quickly in the new year.
