Government to review retained EU law in the UK

The review concerns the retained EU law that continues to apply in the UK’s domestic legal system after Brexit, under the EU (Withdrawal) Act 2018.

In a statement in the House of Lords on 16 September 2021, Cabinet minister Lord Frost, who latterly led the UK’s negotiating team on finalising the EU-UK Trade and Cooperation Agreement, set out two aims of the review: to “remove the special status of retained EU law”, and to “review comprehensively the substantive content of retained EU law”. He said that the government’s intention “is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK”.

The move is likely to spur a re-run of Brexit parliamentary battles before any reforms start to reach the statute book in a year or two’s time.

Reforming the status of retained EU law

A central pillar of the reform considered concerns allowing all UK courts to overturn previously established EU case law. It is curious to see the government revisiting this proposal so soon, less than 12 months after it consulted on it and decided not to proceed. On that occasion, the legal profession raised concerns about the legal uncertainty caused by reopening decades of established case law, and in response the government limited its changes to allowing the Court of Appeal and other equivalent UK courts to overturn EU case law.

It would appear that the government is more determined to follow through with its original plans, second time around. This is against a background of the UK courts having emphasised this year that they will only exercise their new discretion to overturn EU case law in exceptional circumstances, because of these concerns around legal uncertainty. Nonetheless, any widening of the scope to overturn long-established case law will only encourage more speculative litigation, and greater uncertainty as to the meaning and effects of a wide range of legislation.

It will be interesting to see in due course the details of what other reforms the government has in mind to the status of retained EU law in the UK’s domestic legal system. One target in the government’s sights may be the supremacy and direct effect of some EU legislation in the UK under the Withdrawal Act, which continues to override pre-Brexit domestic legislation if a conflict between the two comes to light. Beyond this, changes to the status of retained EU law in UK legislation are more likely to be presentational than substantive.

Reforming the substantive content of retained EU law

Looking to review and reform the content of the UK’s retained EU law after Brexit is not in itself new or controversial. What is striking in the government’s statement is its urgency and ambition to conduct comprehensive reforms.

This goes significantly beyond the government’s previous programme of legislation which prepared the UK statute book for retained EU law in the run-up to Brexit. That programme merely addressed technical legislative deficiencies in the main, though it amounted to more than 1,000 statutory instruments in two years and resulted in more than 100,000 amendments. Given the enormous scale of the legislative challenge, it is inevitable that more substantive reforms to retained EU law to reflect new government policy directions will need to be selectively focused on the government’s top priorities in the short to medium term.

In order to make these reforms, the government has flagged its intention to put a Bill before the UK parliament asking for wide powers to amend retained EU law by secondary legislation. The parliamentary history of the contentious power in Section 8 of the Withdrawal Act, which was the main source of the pre-Brexit legislative programme addressing technical deficiencies, suggests that the new power will be highly controversial.

The main difference in the new proposal is the greater extent of the discretion conferred on government ministers to set new policy in more substantive amendments. Until now, such substantive reforms would generally require an Act of parliament on each occasion, and the full scrutiny process that involves. Undoubtedly, parliamentary battles lie ahead as the government’s opponents in the Commons and Lords will seek to limit the discretionary powers of government to re-write significant legislation in future.