October 24, 2022
As the research briefing explains, the Retained EU Law (Revocation and Reform) Bill was presented to the House of Commons for its first reading on 22 September 2022. No date has yet been indicated for Its Commons second reading.
The Bill would completely overhaul the body of UK domestic law known as “retained EU law” (REUL), which was created by the EU (Withdrawal) Act 2018 (EUWA), as amended by the EU (Withdrawal Agreement) Act 2020 (EUWAA), and came into existence at the end of the post-Brexit transition period (i.e. at the end of 2020).
The research briefing sets out the five main categories of REUL and explains that the EUWA conferred temporary delegated powers in connection with the UK’s withdrawal from the EU, which allowed ministers to anticipate or correct “deficiencies” in REUL. It also explains why the Government is revisiting the EUWA and the Government’s constitutional concerns with it. It then explains what the Bill does, e.g. placing a “sunset” on REUL, causing most of it to expire at the end of 2023, and formally abolishing, for wholly domestic law purposes, the principle of supremacy and other general principles of EU law after 2023.
The research briefing also sets out the significance of the proposed changes set out in the Bill. It states that it is difficult to assess the impact the Bill will have on the substantive law of the UK and explains that if it is enacted, and nothing is done legislatively thereafter, vast reams of REUL would fall away at the end of 2023, which would create precisely the “gaps” in domestic law that the EUWA was designed to avoid. However, the research briefing says that “this is a very unlikely outcome”.
It is more plausible, according to the briefing, that the different powers in the Bill, to preserve, restate, replicate, revoke, replace and update parts of REUL, will be used extensively before the end of the sunset period. What is difficult to predict, however, is exactly how those powers will be used, and which powers the UK Government (and devolved authorities) will rely on most heavily. “The complexity of the new legislative regime could create some degree of legal uncertainty in policy areas heavily impacted by REUL”, the briefing states.
The briefing explains that the Bill “would enable far more decisions about the content of REUL to be taken by the UK and devolved executives, rather than by legislatures. Moreover, to the extent legislatures are still involved, those decisions would be taken with less oversight than there is currently”. The briefing notes that organisations including the Hansard Society and Public Law Project have expressed concerns about Parliament being marginalised. To access the research briefing, click here.