The Retained EU Law Bill sets out to end the influence of EU law in the UK. Giulia Gentile assesses the prospects of the government delivering on its promise to “liberate” the UK from regulatory ties to the EU and evaluates the potential impact of a sharp revocation on the rights and livelihoods of UK citizens.
Almost seven years after the referendum, Brexit still remains to be done. The withdrawal process for the UK was seen as a unique opportunity to take back control from the EU. Article 50 of the Treaty on European Union, which governs the withdrawal procedure, clarifies that exiting from the EU entails the end of the application of EU treaties to the withdrawing country from the date of entry into force of the withdrawal agreement or after a period of 2 years from the withdrawal notification, unless the European Council unanimously decides to extend the period.
Yet, at the time of the referendum, neither Article 50 nor the UK government pointed out that – beyond treaties – there are several EU legislative instruments applicable in EU Member States. The volume of EU legislation in force in the UK on its exit day was not clearly known on 31 December 2020 – and it is still unknown. Currently, a dashboard is being updated and has gathered more than 4,000 pieces of legislation.
Stifling Brexit opportunities?
The complexity of negotiations for the UK’s exit from the EU left insufficient time to revise and potentially repeal EU retained law before its exit day. A pragmatic solution was offered by the Withdrawal Act 2018, as amended in 2020. Essentially, the act’s effect was to take a “snapshot” of all EU law in force in the UK on exit day and maintain those EU measures as part of domestic law. Under this method, the UK government could ensure legal certainty while setting the ground for gradually revising existing rules and departing from the EU.
Yet, according to the UK government’s report The Benefits of Brexit, its ability to depart from EU law is of the essence to Brexit’s success. The government proclaimed a wish “to go further than the changes […] already made and to amend, replace, or repeal all the retained EU law that is not right for the UK.” The report also states that “Our reviews [i.e. the UK government’s] are already underway and making good progress.” The same document offered an overview of the areas in which such reviews would occur. According to some members of the government, the de-regulation envisaged in the report would be liable to transform the UK into the New Silicon Valley or Singapore-on-Thames. As such, the gradual approach adopted through the Withdrawal Act was deemed insufficient to capitalise on Brexit’s potential.
The Retained EU Law Bill, programmatically coined the “Brexit Freedom Bill”, was introduced in September 2022 to address this so far missed de-regulatory opportunity of Brexit. The bill seeks to end – once and for all – the influence of EU law in the UK by revoking retained EU law and providing for the restatement, replacement and updating of certain retained EU law measures by way of regulation adopted by government or national authorities.
The bill works under a main sunset clause: by 31 December 2023, all EU retained law will be revoked unless explicitly saved (or a Minister of the Crown provides an extension until 23 June 2026). The promised land of UK legislation freed from regulatory ties to the EU thus seemed to materialise. But not all that glitters is gold. Indeed, when evaluating the effects of the bill, one cannot but notice several complications and weaknesses that call into question the soundness of the bill.
The devil in the detail
To begin with, the bill encounters two practical challenges: the government still does not know the amount of retained EU law in the UK, and the deadline of 31 December is fast approaching. Latest estimates have identified a total of over 3,700 pieces of EU-derived legislation. Moreover, the bill does not set out any clear plan on how national authorities will save, replace or revoke retained EU law.
The bill does not set out any clear plan on how national authorities will save, replace or revoke retained EU law
If the bill were enacted in its current form, we could be confronted with two outcomes. First, a tout court, indiscriminate revocation of retained EU law without scrutiny. This scenario would certainly see the government accomplish revocation and the “liberation” of the UK from regulatory ties with the EU. But this move could be highly problematic from the angle of compliance with international obligations, including those stemming from the Trade and Cooperation Agreement with the EU and the Northern Ireland Protocol. Separately, if the revocation of EU law is to be one of the benefits of Brexit for the UK, it should benefit the country and its interests. But an indiscriminate revocation of retained EU law could potentially hurt the country and its people: what about environmental, employment or products standards rules currently dependent on retained EU law?
Second, and alternatively, the government could decide to focus on some fields of retained EU law, revising and repealing measures only in those areas, with all other retained EU law disappearing. But again, why should some sectors of legislation receive scrutiny but not others prior to their revocation, repeal or amendment? Would ministers pick and choose at whim which EU law to retain and which to revoke?
Also in this context, the risk is an unjustified bonfire of legislation and – most worryingly – rights. This would erode the protection currently granted under UK law to individuals and businesses, including rights in the fields of employment, environmental protection, and consumer protection, to name but a few examples. The aprioristic revocation of rights based on EU law would not only make the UK less protective of individual legal entitlements; it would undermine the UK’s international reputation as an attractive jurisdiction for investments and economic migrants. It follows that, under the current rules included in the bill, the task of deciding which measures to revoke and which to maintain appears unmanageable and intrinsically arbitrary.
No less concerning is that the revocation process laid down in the bill would leave several aspects of the UK legal order deprived of applicable rules, “lawless”, in other words. To aggravate this situation, UK courts will be required to depart from the traditional principles governing the interpretation of EU retained law, which in turn could lead to fractures and inconsistencies in UK case law (Section 7 of the Bill as introduced). The result would be a significant level of uncertainty in the UK legal order, from the perspective of both UK courts and administrations in identifying and interpreting applicable rules. This seriously impacts individuals and markets operators in their ability to carry on business as usual in the UK.
A deficit of democratic scrutiny
Last but not least, the bill is a remarkable example of an emerging trend in UK legislation which entails diminished parliamentary scrutiny, crippled democratic participation and the triumph of ideology over a reason-based approach to legislating. First, the bill stretches the powers of the government to decide which EU law to revoke or repeal, with no direct involvement of Parliament. The veil falls when considering Section 11 of the Bill as introduced, which provides for reduced parliamentary scrutiny over the statutory instruments adopted by government ministers in the fields of application of the bill in comparison with the Withdrawal Act.
Radical transformations of the UK legal order, such as those entailed by the bill, should be scrutinised by Parliament and its relevant committees, according to the principle that significant legal changes in the UK should be made by Parliament. Furthermore, the bill does not envisage any form of direct involvement of civil society in scrutinising retained EU law – although civil society would itself be affected if the bill passed.
Furthermore, the bill does not envisage any form of direct involvement of civil society in scrutinising retained EU law – although civil society would itself be affected if the bill passed.
Finally, the impression that the bill gives is to be ideological, more than pragmatic and reasonable. The revocation, repeal or keeping of retained EU law should be subject to examination and evaluation, taking into account the issues stemming from the current frameworks and the directions in which the UK wants to head. Without these elements, the Retained EU Law Bill only begets legal chaos.
Overall, it is unclear who might benefit from the revocation of retained EU law – certainly not the UK public at large. But what is clear is that, for better or worse, the EU has offered its Member States a wealth of legal frameworks and numerous rights for individuals. Such EU law has provided broadly satisfying solutions to challenges in fields such as environmental and employment law, and the UK was often a leading force for the adoption of those very reforms. It is difficult to see the current government’s rushed attempt to bluntly sever associations with the EU – turning its back on this heritage – as anything other than a kind of xenophobic populism, and one which is liable to harm UK citizens if it continues to ignore wider practical and legal issues.
 See among other evidence submitted by Prof Catherine Barnard and Dr Joelle Grogan https://bills.parliament.uk/publications/48449/documents/2443; the Wildlife trust https://bills.parliament.uk/publications/48443/documents/2442; Employment Lawyers Association https://bills.parliament.uk/publications/48432/documents/2434.
 On this latter issue, the Bill repeals several aspects of the Withdrawal Act of 2018 as amended and it reduces the ability of the UK Parliament to oversee the repeal of EU retained law.
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