Written by: Arthur Bellamy-Rosser

Ever since the UK began the process of withdrawing from the EU after invoking Article 50 of the Treaty on European Union, the status of EU law within the UK has been of great debate. Whilst the results of the referendum signalled a desire for a greater level of legislative autonomy, the importance of legal certainty and continuity have also long been appreciated. As a result, the provisions of the European Union (Withdrawal) Act 2018 elected to effectively take a snapshot of EU law as it applied to the UK at the end of the Brexit transition period and allow it to have a continuing domestic effect. This became known as retained EU law.

In order to deal with the continued influence of this EU borne legislation, some of which is no longer desirable within the UK, the Government announced the Retained EU Law (Revocation and Reform) Bill at Westminster on the 22 September 2022.

Details of the Retained EU Law (Revocation and Reform) Bill

It would be an understatement to say that the Bill has not received universal praise since its announcement, with the original purpose of the Bill being particularly controversial. Prior to amendments, its original purpose was to either replace or repeal a whopping 3,800 articles of retained EU law. The size of this task was made even more difficult by the inclusion of a ‘sunset’ provision, which had the effect of automatically revoking any of this retained EU law should it not be preserved by legislation before the end of 2023. Thus, the risk of important legislation being overlooked and lapsing was deemed to be high. Furthermore, there was concern as to whether the amount of power which it bestowed upon ministers in deciding which laws should survive the cull was constitutionally appropriate. However, following widespread criticism of the sunset clause from bodies such as The Law Society, the Government announced that it was scrapping the sunset clause, with Business and Trade Secretary Kemi Badenoch citing ‘risks of legal uncertainty’ as the Government’s motivation for the amendment. Instead, a minimum of 600 pieces of retained EU law will be laid out in a revocation schedule, whilst the remaining laws will be retained automatically under the Bill.

The current form of the Bill is both less ambitious than how it was originally presented, and also includes more safeguards. Clause 1 of the Bill states that the legislation listed in the revocation schedule will only lapse at the end of 2023 if it has been referred to a joint committee of both the House of Lords and the House of Commons, and a period of 30 days has elapsed following that referral. When this is considered alongside the reduced amount of legislation being reviewed following the creation of the revocation schedule, it is evident that the risk of any laws lapsing which will substantially change UK law has been at least partially mitigated. However, that is not to say that the current state of the Bill has been applauded.

There has been criticism of provisions of the Bill which alter the way in which some forms of retained EU law can be modified. They purport to revise the status of retained EU legislation to allow for modifications through secondary legislation, and also eliminate some additional parliamentary scrutiny requirements that currently apply when altering some forms of EU-derived secondary legislation. Resultantly, the constitutional concerns which opposed the original form of the Bill are still relevant to its revised form. Clause 7 of the Bill, which alters the way in which the courts can depart from retained EU case law has also been criticised by the Law Society. They feel it would encourage the courts to depart from retained case law more often and fear the great amount of legislative change which this could cause in a short space of time. Thus, it seems that the Bill is not guaranteed to deliver the legal certainty and continuity which individuals and businesses depend on while conducting their activities.

The Implications of Scrapping the Retained EU Law

As we do not currently know the content of the revocation schedule, it is difficult to predict the Bill’s exact impact. However, the fact that we do not know which laws are in danger of lapsing is an issue in itself. It is important that there is sufficient scrutiny of the laws which may be revoked and until the schedule is published, this process cannot begin. This is only made more important when the nature of some of these retained EU laws are considered.

The retained EU law which is currently domestically enforceable in the UK covers a number of important matters. For example, topics such as competition rules, workers’ rights, environmental protection and food standards are all the subjects of some of these laws. Thus, should any of these provisions not receive sufficient scrutiny and mistakenly lapse, then potentially severe consequences could follow. This risk, as well as the current uncertainty of the content of the revocation schedule also has a considerable impact on business and industry. Businesses which seek to operate effectively within international markets require a legislative system which provides them with stability and certainty so that they can adequately plan and strategise. Thus, with the UK arguably failing to provide these conditions currently, it is foreseeable that businesses may invest elsewhere until the legislative picture within the UK becomes clearer.

Another consequence of the Bill which could have profound consequences for many professionals is how it provides a gateway to inconsistent legislative change within the devolved nations. The Bill grants devolved administrations the authority to decide where to retain or repeal different aspects of retained EU law. Consequently, solicitors will be obliged to provide distinct guidance to clients in England and Wales, which will introduce additional considerations for cross-border business.

Conclusion

It is thus evident that the Bill has proved controversial since its announcement in 2022, especially prior to the removal of the sunset clause. However, with it currently in the ‘consideration of amendments’ stage of its enactment, it at least appears that it will soon be possible to obtain some more certainty as to its operation. Although some are sceptical as the end of 2023 deadline looms nearer, if the Bill is a success then UK legislation may benefit from the highest degrees of certainty and continuity which individuals and businesses have enjoyed since the Brexit process began.