What's the issue?
In 2022, during Liz Truss's short-lived tenure in Downing Street, the government published the Retained EU Law (Revocation and Reform Bill) 2022-23. The Bill was intended to give the government the power, largely through amendment of the EUWA, to repeal, amend or assimilate all Retained EU Law (REUL), subject to limited exceptions. Crucially, the REUL Bill as originally proposed, contained a 'sunset clause' which provided that EU-derived subordinate legislation and retained direct EU legislation would be automatically revoked unless otherwise preserved, on 31 December 2023.
As we discussed here, there were a number of concerns about the government's approach, not least of which were how this could be sensibly achieved in such a short timeframe, which laws would go, and what, if anything, would replace them.
What's the development?
Having taken some time to compile a database of over 4000 pieces of REUL, the government has issued proposed amendments to the Bill which has now returned to report stage in the House of Lords.
The most notable development is the demise of the sunset clause which is being replaced by a clause revoking the legislation explicitly set out in Schedule 1 to the Bill. There is scope for a relevant authority to make Regulations retaining a piece of law listed in Schedule 1, provided this is done before 31 October 2023.
Other fundamental aspects of the REUL Bill remain largely intact, including:
- after the end of 2023, domestic law will take precedence over assimilated law but powers are included to allow supremacy of EU law in specified circumstances
- directly effective rights and obligations derived from EU Treaties and Directives and general principles of EU law will lapse after the end of 2023, but powers are included allowing the preservation of their effect where expressly specified
- domestic courts will have greater discretion to depart from retained case law with a new test for departure from retained EU case law and retained domestic case law. In areas of conflict, there will be powers for UK and devolved law officers to refer or intervene in cases involving retained case law. In fact, the amended version goes further than the original by allowing any court to depart from EU interpretive provisions.
- powers going forward to restate, revoke and replace secondary REUL and secondary assimilated law.
What does this mean for you?
If you are interested in fishing law, there will be much to digest (pun intended). The environment, aviation and food are other areas which stand out from Schedule 1, although the list of environmental laws which would potentially have fallen away under the sunset clause was 1700 and only 341 have been included in the Schedule. Even in these areas, many (although by no means all) of the laws identified are no longer relevant in post-Brexit UK.
The good news is that we will certainly not be seeing an immediate collapse of the commercial legal framework in the UK. The Bill does, however, remain controversial due to the wide-ranging ministerial powers to unilaterally revoke REUL using secondary legislation. A further issue is the degree of uncertainty which will remain as to how to interpret the law going forward, leading to a potential increase in litigation as claimants seek to overturn the effect of CJEU decisions.
The House of Lords is currently scrutinising the Bill and has voted through additional non-governmental amendments to give Parliament greater scrutiny over future changes to REUL. Key among these so far are:
- The addition of a sifting requirement to clause 1 which revokes the laws set out in the revocation schedule. This suggests that if Parliament's sifting committee determines that the revocation of any piece of legislation would substantially change current UK law, both Houses of Parliament would need to approve the revocation.
- A new clause providing for Parliamentary scrutiny before any law retained under s4 EU (Withdrawal Act) 2018 is revoked. This would require the government to explicitly identify any affected law and make a statement to Parliament before the end of October 2023. Parliament (or the devolved parliaments) would then have a final say in whether or not the law is revoked.
- A new clause setting out additional conditions for restating, revoking, replacing or updating secondary retained EU law relating to protection of the environment or food standards.
- An enhanced process for scrutinising secondary legislation made using powers to restate, revoke or replace secondary retained law. This would require the proposed SI to be referred for sifting by a joint Parliamentary committee. Where the committee finds the SI would result in a substantial change to UK law or that the government has not carried out sufficient public consultation, the government would be required to allow for a debate and vote in both Houses on the SI. Any changes agreed by both Houses would have to be implemented.
Whether or not there will be significant pushback from the Commons remains to be seen.
What to watch
This is a list of the main laws to be revoked in the field of tech, IP and data as currently set out in the draft Schedule 1.
- Data Retention and Acquisition Regulations 2018 (S.I. 2018/1123) – Regulation 3 – these Regulations amend Parts 3 and 4 of the Investigatory Powers Act 2016 which provide for the retention of communications data by telecommunications and postal operators, and access to that data by public authorities, by bringing into force a code of practice. Regulation 3 amends s22 of RIPA so that access to traffic or location data may only be authorised for the prevention of serious harm. This amendment is set to fall away under REUL.
- Council Decision (EU) 2019/682 of 9 April 2019 authorising Member States to ratify, in the interest of the European Union, the Protocol 1955 amending the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data – the whole decision This relates to an amendment to Convention 108. The Decision authorised Member States to ratify the amended protocol insofar as its provisions fell within the exclusive competence of the Union. The Council of Europe is not an EU organisation. The UK signed up to the amended Convention 108 in October 2018.
- Decision (EU) 2019/2071 of the European Parliament and of the Council of 5 December 2019 appointing the European Data Protection Supervisor – the whole Decision.