At the start of the year, the Government repeated its intent of "getting Brexit done". In particular, the Government set out its plans on ending the special domestic legal status of EU law and making it easier to repeal or replace retained EU law, which now appears to be taking shape.
On 22 September 2022 the UK Government published the Retained EU Law (Revocation and Reform) Bill, the so-called 'Brexit Freedoms Bill' (the “Bill”), aimed at forcing a review of all retained EU legislation. Retained EU law is a category of domestic law created at the end of the Brexit transition period which ended on 31 December 2020 and consists of EU-derived legislation preserved within the UK domestic legal framework by the European Union (Withdrawal) Act 2018.
The Bill is set to establish a ‘sunset date’ for all EU-derived subordinate legislation and retained direct EU legislation, meaning any retained EU laws will be automatically revoked on 31 December 2023 if they are not incorporated into UK domestic laws. Extensions may, however, be sought by Members of Parliament until no later than 23 June 2026. UK ministers and devolved authorities will be given a range of delegated powers to revoke, restate, replace or update retained EU law by way of statutory instrument. Any retained EU law that may remain in force shall be referred to as 'assimilated law'.
The principle of supremacy of EU law (whereby EU law is given priority over domestic law where they conflict) and other general principles of EU law is also set to be formally abolished after the sunset date without an option for any extension of this deadline.
Whilst it is unclear which of the retained EU laws the Government plans to preserve, the effect of the Bill, if passed, would be immense. A large amount of UK legislation is derived from EU legislation (more than 2,400 pieces) which would be heavily impacted either by being removed completely or significantly amended as of 1 January 2024. Current legislation which concerns employment rights, pension rights, food standards, as well as those protecting consumer rights could all disappear.
The Bill brings a real risk to UK businesses of regulatory uncertainty, coupled with a potentially limited time for businesses to prepare for any changes introduced through secondary legislation. There are concerns that current relevant legislation could drop off the statute books as a result of the short timeframe, potentially leaving gaps in domestic law.
The Bill progressed through its second reading in the House of Commons on 25 October 2022, following which the House of Commons Public Bill Committee issued a call for evidence.
In response to this call, the Bar Council has expressed it has 'profound concerns' about the Bill and highlighted its preference for the legislation to be withdrawn. Written evidence submitted by the Hansard Society has also recommended that the Bill be redrafted to facilitate the removal of the 2023 'cliff-edge sunset provision'.
The Bill completed its committee stage in the House of Commons, with Parliament publishing a revised version of the Bill as amended by the Public Bill Committee on 29 November 2022. The next stage is report stage, where the amended Bill will be put before the House of Commons again for debate before it is passed to the House of Lords for its consideration.