The Retained EU Law Bill is now an Act of Parliament, having received Royal Assent on 29 June 2023. In our blog, published at the end of last year, we explained the draft Bill’s key features. Since then, the Bill has undergone significant amendment. In this blog we consider key differences between the original Bill and the Act.
The most contentious provision in the initial Bill was the ‘sunset’, so-called because it proposed to revoke the majority of retained EU law (REUL) on 31 December 2023, unless ministers took action to restate it. Due to concerns over legal certainty and the strain that reviewing a considerable volume of REUL would put on government departments, the sunset has been replaced with a schedule of nearly 600 pieces of subordinate and direct EU legislation that will be revoked at the end of this year. A user-friendly searchable version of the schedule with an explanation of the reason for sunsetting can be found through this link.
According to the government, it has focussed on ‘burdensome and duplicative’ legislation. Over half of the legislation to be sunset stems from the Department for Environment Food & Rural Affairs (Defra), with only one instrument being identified for sunsetting by the Department of Health and Social Care (DHSC), and only seven instruments being identified for sunsetting by the UK IPO (part of the Department for Science, Innovation & Technology (DSIT)). Ministers (including devolved Ministers) will be able to preserve any legislation specified in the schedule but must do so by 31 October 2023.
The initial draft of the Bill proposed to repeal Section 4 of the European Union (Withdrawal) Act 2018, which converted all EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures into domestic law. The Act replaces the repeal with a mechanism that allows any Minister (including devolved Ministers) to give a statement to their respective parliament outlining each EU-derived right or other matter that they have decided not to restate. The right or other matter will not be revoked if their respective parliament votes to save it.
Role of the courts
Amendments were made to the Bill which give the higher courts more discretion to decline a reference from a lower court or tribunal on points of law arising from retained case law. Specifically, the Bill, as originally drafted, provided that the higher court must accept a reference where it considers the point of law referred to be of general public importance. The Act, however, provides that the higher court may accept the reference if the public importance criterion is met.
The House of Lords sought to introduce a ‘non-regression’ clause into the Act which would require the government to at least maintain EU standards on environmental protection. The House of Commons rejected this proposal but assured the Lords that the government will consult on all major policy changes and pointed out that Ministers must act within the framework created by the Environment Act 2021, which creates legally binding targets for air quality and species abundance.
The removal of the wholesale ‘sunset’ of REUL represents a significant change in the government’s approach, which acknowledges the importance of legal certainty and the damage that could be caused by this approach through inadvertent gaps in the legislation. This should give comfort to businesses, agencies, and other stakeholders, as should the government’s stated commitment to carry out consultations before making any further reforms. That said, the government says this is not the limit of its ambition and that it will continue to review remaining REUL. Indeed, the Financial Services and Markets Bill and the Procurement Bill propose to revoke a further 500 pieces of REUL. As such, the Act is very much a starting point and it remains to be seen exactly how the post-Brexit regulatory landscape will look.
The amendment to the draft Bill giving higher courts more discretion to decline a reference from a lower court or tribunal should, at least in theory, reduce unnecessary satellite litigation. There is, however, a significant amount of uncertainty as to how references will be conducted in practice. The Act is not prescriptive as to:
- which stage in litigation it might be appropriate for a court to refer points of law on REUL
- the form and scope of documents to be sent to the relevant appeal court for consideration
- the speed by which the relevant appeal court should decide whether to accept or refuse a reference
- the procedural mechanism by which a reference should be conducted, except that the lower court or tribunal may make a reference of its own motion or pursuant to an application by a party to the proceedings.
Given these uncertainties, and until a few cases are referred, it is hard to get a sense of the extra costs and/or time delays that a reference could involve, or indeed the likelihood that additional costs and/or delays might deter parties from actively seeking a reference.
Should you have any questions regarding the Act, we would be delighted to hear from you.