UK government introduces Bill to repeal retained EU law en masse

The Retained EU Law (Reform and Revocation) Bill (42 pages / 1.86MB PDF) will amend the 2018 European Union (Withdrawal) Act, which provided continuity by incorporating former EU law into the UK legal system after Brexit as ‘retained EU law’. Retained EU law currently covers most aspects of UK law that were previously derived or influenced by EU legislation, including environmental regulation, data protection, employment law, intellectual property, financial services and competition law.

The Bill will allow ministers to replace retained EU law with new domestic legislation more easily, and will see large parts of retained EU law ‘sunsetted’ in 2023 – repealed automatically unless ministers decide to preserve or replace them beforehand.

Under the terms of the Bill, the special EU law features of any former EU law that remains in force after 2023 would then be removed, so that it operates as “assimilated” law. This includes repealing the principle of EU law supremacy, as well as the general principles of EU law – used by the Court of Justice of the EU (CJEU) and member states’ national courts to determine the lawfulness of legislative and administrative measures. It will also repeal directly effective EU rights, which, as a result of CJEU case law, override any national legislation that conflicts with them.

A new interpretation rule included in the Bill would ensure domestic legislation has priority over any former EU legislation and repeal the principle that domestic legislation should be interpreted consistently with former EU law. New processes would allow domestic courts to depart from legal precedent set by EU case law more often.

The Bill will also make it easier for ministers in the UK government and the devolved administrations to amend and replace retained EU law by secondary legislation, without the need to pass an Act of Parliament each time that major reforms are planned. The same powers can also be used to preserve some of the current effects of EU law.

In a statement, secretary of state for business, energy and industrial strategy, Jacob Rees-Mogg, said: ““Retained EU law was never intended to sit on the statute book indefinitely. The time is now right to bring the special status of retained EU law in the UK statute book to an end on 31st December 2023, in order to fully realise the opportunities of Brexit and to support the unique culture of innovation in the UK.”

The Bill will be debated in both houses of parliament over the coming months and could be amended in light of concerns raised over uncertainty that reforms might cause for businesses. One unnamed regulatory expert told the Financial Times last month that industry did not want to see a “bonfire of rules”.

David Thorneloe of Pinsent Masons said the Bill marks “a break from the continuity approach taken to date for maintaining retained EU law on the UK statute book after Brexit. Instead, it will end most of the special features of EU law, so that it is treated more like other domestic legislation. With a sunset date of December 2023 for these changes, the Bill fires the starting gun on an intensive and significant programme of legislative reform.”

“The Bill contains broad powers allowing the UK and devolved governments to reform retained EU law. These can be used in different ways for different sectors, so they could pave the way for reforms giving effect to new policy agendas, or they could be used to preserve the existing law where continuity is considered desirable,” Thorneloe added.