The UK's Retained EU Law Bill - What do you need to know?

At the end of the Brexit transition period on 31 December 2020, in order to avoid a cliff edge in terms of legal certainty, the vast majority of EU law which had applied in the UK was imported into domestic law as "retained EU law" or "REUL". The Retained EU law (Revocation and Reform) Bill aims to ensure that most of this body of REUL is either consciously retained, with any necessary amendments, or ceases to apply to the UK at the end of this year. Any REUL remaining in force after that date will be referred to as "assimilated law" and will no longer have supremacy over domestic law or be interpreted in accordance with the general principles of EU law.

The headline provision of the Bill is a sweeping sunset clause which revokes all EU-derived subordinate legislation (but not primary legislation) and retained direct EU legislation at the end of 2023, subject to exceptions including in the area of financial services (which is being dealt with under the Financial Services and Markets Bill) and where provisions are specifically retained. The theory is that each Government department will consider the REUL that affects its area and decide what to keep, which it will specify in regulations, and what to allow to be revoked. This is a monumental task, and there is a power to extend the sunset where necessary to give time to complete the process (but to no later than 23 June 2026, the ten year anniversary of the referendum).

This process is being tracked via the Government's REUL dashboard, which will ultimately be used to notify the public what will change and what is likely to remain the same. Each department is carrying out their review separately and reporting and it is currently not expected that anything will be published until the overall picture has been considered separately. This leads to a significant degree of uncertainty for businesses and their legal advisers.

The Bill also sets out a new test for the higher courts (Court of Appeal and above) to consider in deciding whether or not to depart from retained EU case law. Under this test, the courts must have regard to (among other things) the extent to which the retained EU case law restricts the proper development of domestic law. This has been described by commentators as a “nudge” to the courts to encourage greater departure from EU case law.

There is also a new reference procedure, not dissimilar to references to the CJEU, whereby a lower court can refer points of law arising on retained case law to a higher court if the lower court is bound by the retained case law and it considers that the point of law is of general public importance. The higher court will then decide the point of law only and the matter will be sent back to the lower court to apply that decision on the law to the facts before it. There is a similar reference procedure that can be used by law officers (such as the Attorney General) if no reference is made during the proceedings.

The Bill also contains broad powers for the Government to restate REUL, or even to replace it with alternative provisions – a power which has been described as unprecedented from a constitutional perspective.

For more information on the Bill and why it matters, see this post on our Beyond Brexit blog.