Retained EU Law (Revocation and Reform) Act 2023
On 29 June the Retained EU Law (Revocation and Reform) Act 2023 (the ‘Act’) received Royal Assent. Juli Lau and Shyann Sheehy look at the key provisions.
The Retained EU Law (Revocation and Reform) Act 2023 (the ‘Act’) makes provisions for changes to the operation, status and content of Retained EU Law (‘REUL’) which was created under the European Union (Withdrawal) Act 2018 (‘EUWA’) based on EU and EU-derived law that applied to the UK at that time. Under the Act there are four key categories of law: revoked (‘sunsetted’), restated, replaced and assimilated legislation.
Breaking down the Act
Sunsetting
The Act enables the revocation of 587 pieces of REUL that, at the end of 2023, will sunset. Previously it was intended for all laws to be revoked unless expressly stated, however the final iteration of the Act provided that legislation had to be expressly stated to be revoked. Relevant national authorities had until the 31st of October to use their ‘power to preserve’ against certain instruments. Though this power has now expired, further secondary legislation can be used to revoke instruments if required.
Revocation and Replacement
At the end of 2023, items listed in Schedule 1 of the Act will be revoked. Authorities can replace these with new legislation which achieves the same/similar objectives (or if appropriate, implementing new provisions with different objectives). Additionally, the Act provides the power to update secondary REUL or secondary assimilated laws to take into account technological changes or developments in scientific understanding (but this is not intended for significant policy changes).
Further, the Act ensures the principle of the supremacy of EU law is not part of domestic law, giving domestic primary and secondary legislation priority over retained direct EU legislation when they conflict. An exemption to this is under section 8(1) of the Act which can reverse the priority order for specific legislation confirming retained direct EU legislation takes precedent.
Restatement
The Act provides UK Ministers or devolved authorities the power to reproduce the effect of anything which is or was REUL by virtue of section 4 of the EUWA by restating, clarifying or consolidating any REUL. This provides a level of legal certainty in areas of REUL where there may be resulting unintended consequences with sunsetting or if a policy is not intended to change immediately. Furthermore, the Act also allows for the codification of the effects of retained case law and EU-derived principles of interpretation if necessary to ensure an existing policy effect. This power is limited however, as it does not allow the function or substance of the legislation to change or for any substantive policy changes.
Assimilation
The Act contains several assimilation provisions which intend to change the status of REUL and after 2023 the name used to describe it. Specifically, the Act:
- removes the general principles of EU law from the UK statute book,
- removes the principle of supremacy (or primacy) of EU law from the UK statute book (therefore removing the requirement to interpret REUL in accordance with these principles), and
- renames any REUL still in existence after the end of 2023 as ‘assimilated law’.
As a result, retained direct EU legislation must be read and given effect ‘so far as possible’ to be compatible with or failing this, subject to all other domestic legislation. There are some exceptions to these changes. For example, the new rule of legal hierarchy does not apply to certain aspects of data protection law, and regulations made under section 7 of the Act could reinstate supremacy in relation to specific situations or instruments.
Role of Courts
The Act also provides courts (who do not already by virtue of EUWA have the power to depart from retained EU case law), the Attorney General, other Law Officers in the UK and devolved institutions the power to make references to higher courts to depart from retained EU case law. This does not necessarily mean the courts must depart from the retained case law, but it provides the ability to make departures and give full consideration to the influence of these changes in domestic case law.
If a provision of retained direct EU legislation is found to be incompatible with a domestic enactment or vice versa, courts will also be required to make an ‘incompatibility order’. If relevant, this order should outline the effect of the incompatibility provision in this specific instance and provide that the effect of the provision should be limited or stopped before the order comes into force.
Statutory Instruments
Some statutory instruments being laid under the Act must go through a ‘sifting process’ before they can be formally laid in Parliament. This process involves a scrutiny committee compromising of members from both Houses of Parliament considering the suitability of the negative procedure in relation to the instrument. Once laid before parliament the instrument will then become law unless it is actively voted down within a set period. ‘Affirmative’ statutory instruments, on the other hand, are subject to debates in both Houses. Lists of both types of statutory instruments to be laid under the Act can be found here.
The following secondary legislation has also been introduced under the Act. Firstly, the Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 was published on the 16th of October to make amendments which are required in consequence of the Act. It removes references to recognised rights in domestic law and the application of EU general principles as developed by the ECJ in its case law from UK primary legislation from end of December 2023. Additionally, the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 was published on the 30th of October. It preserves specified instruments from the revocation of REUL under Schedule 1 of the Act which have been identified for their need to be preserved, while further revoking obsolete and inoperable pieces of legislation as listed in Schedule 2 of these Regulations.
Looking to the Future
While certain clear principles on the legal status of REUL are clarified in the Act, there remains a degree of uncertainty, and it will be important to closely observe further changes made through secondary legislation.
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