What's the issue?

The Leave Campaign and the now government promised that a benefit of Brexit would be a 'bonfire of red tape' once the UK was outside the EU.  But under the terms of the EU Withdrawal Act, the UK retained the EU law in place at the end of the transition period.  Provisions were made to set out the status of retained EU legislation and case law.  These required retained EU legislation to be amended or repealed by primary legislation (involving a high level of parliamentary scrutiny) and gave CJEU case law the equivalent status of Supreme Court decisions.

What's the development?

The government has announced a new Brexit Freedoms Bill and has published a policy paper laying out how it intends to "take advantage" of leaving the EU.   The Paper sets out plans to review retained EU law both in terms of its substance and in terms of the legislative process required to change it.  The government is proposing effectively to downgrade the status of EU-derived law by introducing targeted powers so that it no longer requires primary legislation to amend or repeal it. 

The government is also looking at how to remove the continued effect of EU law over domestic law by creating a "bespoke rule" to address cases where retained EU law comes into conflict with domestic law, and look at how other features of retained EU law should be treated.  This includes whether the UK should retain directly effective EU rights that overlap with existing domestic law rights, the extent to which domestic courts should follow historic decisions of the EU courts, the role of the general principles of EU law in relation to retained EU law, and how to remove retained EU law which is declared invalid by the EU courts.  Different approaches may be needed for different sectors.

At the same time, the House of Commons European Scrutiny Committee launched an inquiry to look at the future of retained EU law in the context of the government's plans.  The Committee is asking stakeholders to input on questions including:

• the extent to which retained EU law is a distinct category of domestic law and whether it affects the clarity and coherence of the statute book
• how well the concept of retained EU law has worked in practice and the extent of any issues with uncertainties or anomalies, either to date or in future
• whether retained EU law should be interpreted in the same way as other domestic law and whether or not CJEU case law should have any relevance
• the extent to which retained EU law has affected devolved competence.

Submissions are requested by 14 March 2022

What does this mean for you?

The Policy paper sets out very few new initiatives in tech, digital and data although it does provide a summary of consultations and legislative proposals made over the last year, largely listing ongoing consultations and general aspirations.

The approach to retained EU law is, however, significant.  If the government is able to legislate to remove the requirement to amend it using primary legislation (which seems likely given the size of its majority), it will be able to make changes under far less scrutiny.

A change to the status of CJEU law would also be significant.  Currently, these decisions have an equivalent status to Supreme Court decisions.  If they are downgraded, the UK courts will have more scope to depart from them.

All in all, if these changes go through, we may well see UK law diverge from EU law far more quickly than originally anticipated.  Presumably, this is the government's aim.  How changes will play out practically for cross-border businesses, remains to be seen.