A Sensible Approach to Retained EU Law - no sweeping sunset at the end of the year

Earlier this week Kemi Badenoch, the Minister responsible for retained EU law, announced a change of plan on the abolition of retained EU law and its replacement by purely domestic law: Written statements - Written questions, answers and statements - UK Parliament.  This is reflected in proposed Government amendments to be made during the Report Stage of the Retained EU Law (Revocation and Reform) Bill in the House of Lords next week.

Instead of abolishing all retained EU law not specifically saved (and committing to get rid of even that body of law by the end of 2026) some 600 pieces of retained EU law set out in the proposed amendments will be specifically repealed and the rest will, under other provisions of the Bill become "assimilated law" and be subject to changes in their status and interpretation designed to ensure the supremacy of domestic law throughout the United Kingdom. In addition, the rights and obligations etc preserved by s 4 of the European Union (Withdrawal) Act 2018 will be abolished at the end of 2023 (subject to transitional provisions for events occurring before that date).

Much of the retained EU law to be repealed is of no relevance to the UK now that it has left the EU:  for example provisions that could only be applicable to countries that are Member States of the EU or which relate to geographical areas within the continuing EU.  Some of this could have been repealed previously, but has likely come to light as a result of the thorough review in Government departments carried out for the purposes of the Bill.

What is clear is that every Government department is now fully aware of the retained EU law in their field of responsibility and is charged with domesticating that law. This can, however, now proceed with a more sensible timetable and the risk of creating "no law" gaps in important areas of law applicable in the UK has been removed.  In particular, it is now clear that important measures are no longer at such great risk of arbitrary repeal without careful consideration of their replacement.

There may however still be concerns regarding the Bill's sweeping powers to amend, restate or revoke retained EU law, as well as the potential for uncertainty caused by the changes to how retained EU law is to be interpreted (with the revocation of the principle of EU supremacy and other general principles of EU law) and the provisions encouraging courts to depart from retained EU case law.