Retained EU law
‘Retained EU law’ is a concept created by the European Union (Withdrawal) Act 2018.
This act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law.
On 10 May 2023, the government scrapped the proposed sunset clause, which would have automatically revoked most retained EU law at the end of 2023.
Instead, at least 600 pieces of retained EU law are set out in a revocation schedule.
We will closely look at the detail of those pieces of legislation to understand the potential impact on our members.
Any laws not listed in the revocation schedule will be retained automatically.
We’ve welcomed this news. Since 2022, we’ve been advocating for the government to:
- remove the sunset clause deadline of 31 December 2023
- publish a list of all affected legislation
Overview
The Retained EU Law Act will change the way courts can depart from retained EU case law (clause 7).
It will also change the way that some types of retained EU law can be modified, such as:
- ‘downgrading’ retained direct EU legislation so this could be amended by secondary legislation
- removing additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation
Our view
While we welcome the removal of the sunset clause, we still have wider concerns about the act, notably on parliamentary scrutiny of future legislative changes.
We’ve called on the government to publish an exhaustive list of every piece of legislation being revoked as soon as possible to ensure adequate scrutiny of the affected laws.
In areas such as employment law, workers could lose access to long-established rights that now form an integral part of Britain’s reputation as a fair society, such as holiday pay or protection against fire and rehire.
The act could also have a significant impact on the UK’s relationship with the EU, threatening the UK-EU Trade and Cooperation Agreement (TCA) that many sectors depend on, including legal services.
Clause 7
Clause 7 seeks to introduce a new test for departing from EU case law, which would:
- encourage the courts to depart from retained case law more often
- result in large amounts of law being changed in a short space of time
This would compromise the legal clarity and certainty that individuals and businesses rely on when carrying out their affairs and which is otherwise provided by the UK Supreme Court test.
Law officers do not currently play a part in civil litigation. However, clause 7 would allow them to interfere in it, especially after the case has concluded. This proposal is highly unusual and, we believe, contrary to the interests of justice and the rule of law.
What this means for solicitors
Depending on which laws are listed on the revocation schedule, the changes may impact solicitors working in areas such as:
- environmental law
- consumer protection
- intellectual property, and
- employment law
We’ll review the legislation closely to understand the potential impact on our members.
International businesses may be reluctant to invest in the UK until the legislative picture becomes clearer.
Devolved administrations may choose to keep or repeal different aspects of retained EU law, meaning that solicitors will need to:
- offer different advice to clients in England and Wales respectively
- consider the implications for cross-border business
Litigation could increase as parties seek to overturn previous rulings that were based on EU case law. This will add to pressure on a justice system already facing a significant backlog.
What we’re doing
Ongoing – we're reviewing the legislation affected by the revocation schedule and how it will affect our members
Summer 2023 – we meet with other civil society organisations concerning the bill, and engage with parliamentarians as the bill moves through the House of Lords
May 2023 – we welcome the amendment removing the sunset clause, approved at report stage in the House of Lords on 15 May
February 2023 – we briefed peers ahead of the bill’s second reading in the House of Lords
January 2023 – MPs from across the political spectrum quoted our evidence in a House of Commons debate about the bill
November 2022 – we submitted evidence to the Public Bill Committee outlining our thoughts on the legislation
October 2022 – we briefed MPs ahead of the bill’s second reading in the House of Commons, based on concerns raised by several of our committees
July 2021 – we responded to the Ministry of Justice’s consultation on departure from EU retained case law by UK courts and tribunals