Goodbye to EU Law and the Bill of Rights Bill?

The Retained EU Law (Revocation and Reform) Act 2023 (“REUL Act“) received the royal assent on Thursday 29 June but the same can't be said for the Bill of Rights Bill (the "Bill"), which the Government confirmed will not be proceeding on 27 June 2023.

The REUL Act marks a step forward in the efforts to remove EU derived law from the UK Statute Book, except where required to comply with international obligations (for example, under the Northern Ireland Protocol to the Withdrawal Agreement or the Trade and Cooperation Agreement with the EU).

The REUL Act 

The European Union (Withdrawal) Act 2018 (as amended) (“Withdrawal Act“) had already limited the application of EU law in the UK. After the end of the Brexit implementation period, at the end of 2020, only categories of law known as “retained EU law” survived.  These consisted of:

• UK Subsidiary legislation implementing EU obligations placed on Member States as part of the law in the UK jurisdictions, with suitable amendments and repeals to reflect that the UK was no longer a Member State but still needed law to deal with the rights and obligations of its citizens in the areas covered by these laws;
• Directly effective EU law, eg EU Regulations at that time applying directly in the UK, again with suitable amendments and repeals made on the same basis;
• Other rights, powers, liabilities, obligations, restrictions, remedies and procedures recognised and available under domestic law (usually by reason of s 2(1) of the European Communities Act 1972, subject to some limitations set out in the Withdrawal Act itself.

The Withdrawal Act provided for the removal of retained EU law over time according to processes set out in the Act and also set the relationship between decisions of the Court of Justice of the European Union (“CJEU“) and those of the UK Courts.

The REUL Act has overridden the scheme for repeal and replacement of retained EU law set out in the Withdrawal Act with effect from the end of 2023, and provided a new scheme, with the intention of accelerating the replacement of this body of law by purely domestic legislation.  It also changes the relationship between EU case law and decisions of the UK courts.

In its initial form the legislation proposed the sweeping abolition of all retained EU law with effect from the end of 2023, save to the extent that particular legislation was specifically saved, but this proved impractical, given the extent of retained EU law in so many important areas: at the time the UK left the EU as much as a third of UK law was derived from EU law. In its final form, the REUL Act provides for absolute revocation of some 600 measures, most of which are of minor importance to the UK.  The main changes therefore are those that affect how the remaining EU derived legislation will be replaced over future years:

1. All retained EU law remaining in force after 31 December 2023 will be renamed “assimilated law”;  the Government dashboard lists each item of retained EU law and will give details of expected replacement or amendment, so that interested parties can identify the timetable for change and its likely course.  This will now include changes to rights etc currently in the third category of retained EU law (see above);
2. There will be a new process available until the end of 2026 for repeal or restatement of assimilated law by purely domestic law using the relatively simple process of statutory instruments (“SIs“) proposed by Government Ministers, although it is always possible to use primary legislation for this task (eg in the Procurement Bill currently before Parliament).  The proposed process was heavily criticised during the legislation’s passage through Parliament as not allowing sufficient parliamentary scrutiny or providing a flexible process if amendment was needed during the passage of an SI.  After considerable passing to and fro between Lords and Commons of amendments to address this concern, the Act was eventually passed in the form originally proposed by Government.
3. Except where an international obligation requires the UK to give primacy to EU law, domestic law will have primacy over EU law. The Act contains provisions aimed at encouraging the higher courts to depart more readily from CJEU rulings pre-dating the end of the implementation period, and (as before) domestic courts are not bound by CJEU rulings after that date.  Of course, domestic courts remain free to have regard to EU law as a foreign law and, if a court is convinced by a CJEU interpretation of the words of what will become an “assimilated law”, it can be expected that they will take a decision consistent with that CJEU interpretation.  While it is not clear whether the changes will actually result in much divergence in practice, it adds to legal uncertainty.  English courts, especially at a higher level, have a reputation for dealing well with difficult interpretational issues and it is to be hoped that common sense will prevail.  Meantime reliance on the precedent value of existing decisions on this body of law, both by domestic courts and the CJEU, are put in doubt until such time as higher domestic courts take new decisions in the field, a process which may be facilitated where a lower court identifies an “incompatibility”.

The Bill of Rights Bill

The Government first announced its intention to introduce a Bill of Rights Bill on 11 May 2022 (see our previous blog post here), and laid the Bill before Parliament on 22 June 2022. The Bill, aimed at repealing the Human Rights Act 1998, was introduced in clause 1 as clarifying and re-balancing the relationship between UK courts, the European Court of Human Rights (“ECtHR“) and Parliament. The Bill received vast criticism including from the Law Society which called it a "lurch backwards for British justice" and warned about its potential to create "acceptable" human rights abuses. You can read about the key changes that were proposed in the Bill here, and listen to a discussion of HSF's views in an episode on our Public Law Podcast here.

On 27 June 2023, Justice Secretary Alex Chalk MP confirmed in the House of Commons that the Government would not proceed with the Bill. This announcement will come as a relief to many, considering the significant backlash the Bill received and its likely consequences of uncertainty, divergence from the ECtHR and a reduction in the protection of rights in the UK. However, it is worth noting that the Government stated that it remains committed to a human rights framework that is up to date, fit for purpose and works for the British people, indicating that it "is right that we recalibrate and rebalance our constitution over time, and that process continues". This is not necessarily, therefore, the end of the story in terms of the current Government's approach to human rights.