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The Retained EU Law (Revocation and Reform) Bill is currently making its way through Parliament but what do we currently know about the Bill, which may have an impact on over 2,400 pieces of legislation on the UK statute books?

You may be forgiven for not spotting the Retained EU Law (Revocation and Reform) Bill (or the Brexit Freedoms Bill as it is affectionately known) slip in front of the House of Commons on 22 September 2022 as all eyes were on Kwasi Kwarteng’s mini budget at the time. But the significance of this Bill should not be underestimated. Indeed, it could have huge impacts on businesses and consumers, including in the fields of employment, consumer protection, health and safety and transport and despite a change in prime minister, it could still be on the cards. Here is what we know about the Bill so far:

1. Adieu EU legislation

The effect of the Bill, if it is passed as it currently stands, is that by 31 December 2023 (the “sunset date”), all retained EU legislation (REUL) will be revoked. REUL is a special category of law that was created when the UK left the EU consisting of EU-derived secondary legislation and retained direct EU legislation. Without it, once the UK left the EU, there would have been some unintended gaps left in our statute books at the end of the transition period, leading to uncertainty, confusion and a loss of protection and rights for UK businesses and citizens.

In addition, on the sunset date, the principle of the supremacy of EU law (whereby EU law would trump conflicting UK law) will become a thing of the past as well as an increased emphasis on the UK courts departing from case law coming from the European Courts of Justice.

2. Government departments have a mammoth task

If the Bill is passed, the relevant government departments will have to review and assess every piece of REUL to decide whether they are happy to lose it (in which case they do not need to do anything) or whether to adopt it, either as it is or to take the opportunity to amend it so that it is fit for UK requirements. This would require government departments to positively and proactively assimilate REUL into UK domestic law. This might be desirable for several reasons – such as the continued protection of UK citizens, to limit the impact of any negative consequences that might otherwise arise as a result of the Brexit trade deal or because the principles behind a particular piece of REUL is still required (and it may be easier to start with the existing laws than a clean sheet of paper).

It is no mean feat to go through all the potentially affected legislation. Whilst we do not have a definitive list, the government has published a dashboard comprising over 20 government departments who have listed what they perceive to be the affected laws – which currently runs to some 2,400 pieces of legislation. If you filter by government department, you will see the enormity of the task in hand. For example, the Department of Transport have identified 424 pieces of REUL, of which 316 are currently unchanged, 39 have been amended, 54 have been repealed and 15 have been replaced.

3. An extension of the sunset date is possible

The sunset date can be extended under the Bill for particular pieces of REUL to 23 June 2026 (the 10-year anniversary of the Brexit referendum) if additional time is needed to review and make decisions on it. Whilst some feel that there is merit in cracking on with the job, it seems eminently sensible that this should not be at the price of rushing and making mistakes along the way, especially given that there will be limited Parliamentary scrutiny in the process. Therefore the possibility of extending the sunset date by an appropriate amount of time for particular pieces of REUL would be an attractive, and perhaps essential, option for those government departments who find that the task of properly completing the exercise by 31 December 2023 a tall order. Or would they otherwise feel forced to play it safe and adopt the REUL as it is, which does not on the face of it achieve the goal of the UK regaining control of its own laws?

4. The Bill hasn’t been passed yet

Whilst the government under Liz Truss’ leadership said “there is no place for EU law concepts in our statute book ” and it wanted to pick up the pace of removing all traces of EU law - the Bill still has several stages to go through before it receives Royal Assent, and this may result in amendments being made to it along its journey. Further, the Bill was enthusiastically and emphatically introduced by Jacob Rees-Mogg who has since resigned. This does beg the question as to whether this Bill will be a priority for our new prime minister, or whether it will be put on the back burner in favour of dealing with the catalogue of other pressing issues. Time will tell on this front and whilst there is mounting pressure for him to consider the pace at which this legislation is brought into force, it was part of Mr Sunak’s original campaign to become prime minister, that he would put EU laws through the shredder within the first 100 days of his tenure!

5. Developments should be closely monitored

The million-dollar question is how this Bill will impact businesses going forward and the short (albeit unhelpful) answer is that it is unclear. That is because the changes have not been scoped or communicated. It would seem prudent for businesses to expect that in some areas, REUL will be preserved through updated and properly incorporated domestic legislation especially where those areas are currently working well. In other instances, laws could be either deliberately (or perhaps inadvertently?) swept away on the sunset date which may have the advantage of reducing cost and burden for UK businesses but have the double-edged sword of leading to confusing gaps where once there was clarity. For the time being, however, businesses should continue to operate assuming that the law as it stands today will remain ‘as is’ unless and until a change is announced in relation to each particular area, especially as the Bill is not yet law. That does not mean to say that you cannot prepare for possible change – in the context of commercial contracts, for example, you may want to start paying close attention to the impact general changes to law might have and whether that is a reason to excuse performance, extend delivery deadlines or trigger a price adjustment. Keeping a close eye on developments, especially as we edge closer to the sunset date, will help you prepare and react to changes if and when they materialise. We will of course continue to closely monitor developments and seek to provide insight into specific areas to help organisations navigate through any changes on the horizon.

Summary

If the Bill became law tomorrow, and around eight pieces of legislation were tackled per working day between now and 31 December 2023, then the government departments might have a fighting chance of completing the task in hand; however, it does seem like a rather large mountain to climb to do the job properly. Then there is the question of how much notice organisations will be given of any relevant changes especially as there are so many other significant issues for them to grapple with at the moment (supply chain issues, the prospect of rolling blackouts and rapidly increasing cost bases immediately spring to mind). But for now, whilst we can see glimpses of the sunset ahead for REUL, let’s just say it is still very much basking in the afternoon sun, so watch this space.

 

 

[1] Department for Business, Energy & Industrial Strategy, 22 September 2022

 

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