A shift in policy – More focused and cautious approach to legal reform nearly 4 years after Brexit?

Elizabeth Withers and Sally Stock provide insight into the decision not to enact Section 6 of the Retained EU Law Act.

After Brexit, much of the EU law that applied to the UK was retained in domestic law. Section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) aimed to amend certain provisions within section 6 of the European Union (Withdrawal) Act 2018 (‘EUWA’).

It was designed to allow the UK Court of Appeal and Supreme Court to depart from assimilated case law or retained EU case law without the need to pass a new Act of Parliament for every change.

On 26 September 2024, the new government announced that section 6 would no longer come into force in October 2024 as originally envisaged.

Impact of the revocation

Section 6 was to provide a streamlined mechanism by which the UK government could revoke or amend laws retained from the EU without needing full parliamentary scrutiny.

The revocation of section 6 means the Government loses this specific ability. This could have significant implications for the status and interpretation of retained EU law under the REUL Act, leaving UK courts to continue interpreting retained EU law under the existing framework provided by the European Union (Withdrawal) Act 2018 (EUWA). Thus resulting in the slower and more formal removal or amendment of retained EU laws within the current framework.

This is likely to lead to a pause in the broad revocation of retained EU law, meaning such laws may remain in force unless specifically repealed or amended through other means.

Is this a shift in the Government’s approach to post Brexit legal reforms? Or is this just a pause in the revocation intention?

In a letter from the Department for Business & Trade, the Director of Regulation explains that “This Government intends to look at this issue again in the wider context of its work to reset UK relations with the EU. It remains open to the Government to bring forward further regulations at any point in the future to bring section 6 into force”.

This appears to be a significant shift in post-Brexit policy, perhaps following a recognition of the complexity involved in overhauling the UK’s legal framework after leaving the EU.

A blanket approach to revocation could now be deemed to be impractical, given the sheer scale of retained EU law.

Therefore, rushing through widespread changes could risk creating legal uncertainty and unintended disruption in critical areas.

Instead, the Government appears to be shifting towards a more careful and considered approach, prioritising targeted reforms rather than sweeping changes.

This includes maintaining stability in key areas such as environmental law and workers’ rights, which are seen as vital to protecting public interest and ensuring legal certainty.

Implications on UK Courts

Retained EU law includes EU case law as it stood on the implementation date (31 December 2020). UK courts are bound to follow this case law unless a higher UK court departs from it.

Courts are not bound by post-Brexit EU case law, but may reference it for its persuasive value, particularly where it provides useful guidance or addresses issues not previously considered by pre-Brexit case law.

Impact on Procurement

One area where these changes may have notable implications is procurement law. Procurement law in the UK has been heavily shaped by EU directives and the underlying EU principles of transparency, non-discrimination, and equal treatment.

With the revocation of section 6, much of the domestic and EU case law will remain in place, with its roots firmly in the EU principles.

However, the question arises: how will this interact with the new Procurement Act, which introduces new procurement principles that deviate from the traditional EU regime?

Following the go-live date of the new Procurement Act in February 2025, courts will need to navigate a tension between maintaining continuity with EU-inspired case law and interpreting the new legislative direction.

In the short term, it is highly likely that courts will continue to rely on previous case law when considering procurement principles, especially without clearer guidance from new regulations.

However, in the long-term, it is unknown whether the judiciary will continue to be cautious in dismantling long-standing EU case law due to its foundational influence on UK procurement practices, or whether they will be willing to embrace the reforms outlined in the new Act.

As the legal landscape continues to evolve, it will be interesting to follow how EU-derived procurement principles interplay with UK-centric legislation, and how the courts respond.

Section 6 in the future?

This Government has stated that it intends to look at this issue again in the wider context of its work to reset UK relations with the EU.

It remains open to the Government to bring forward further regulations at any point in the future to bring section 6 into force. This is an area to watch out for.

Elizabeth Withers is a Trainee Solicitor and Sally Stock is a Partner at Sharpe Pritchard LLP.

This video is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..