What The Retained EU Law Bill Means For You
The Retained European Union Law Bill is making its way through parliament and, unless repealed, will amend almost 4,000 pieces of decades-old, EU-derived legislation.
The House of Lords is likely to table amendments, but with a present sunset date of 31 December 2023, and a longstop date only as far in the future as 23 June 2026, there's a huge amount of uncertainty over what will happen to the EU laws that currently form much of the UK’s regulatory and legislative backbone.
What does this mean?
Under the Bill any EU-derived law which isn't preserved will simply fall away on the sunset date.
If the law is going to be preserved then the government is required to take positive action and introduce new or equivalent laws. It's likely that gradual changes, if they do happen, will occur to relevant regulations this calendar year.
If regulations aren't amended, repealed, or replaced, they will simply fall away on 31 December 2023, unless the extension is implemented.
What are the key changes?
- The repealing of EU-derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum), but won't be able to further extend it.
- The repealing of the principle of supremacy of EU law by the end of 2023. Currently, the law is certain. Any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. But the Bill will subjugate all EU law in favour of UK law by default. In other words, tribunals and courts won't be able to use EU decisions to help it interpret UK laws or stretch UK statutory interpretation to give effect to EU law.
- The repealing of directly effective EU law rights and obligations in UK law by the end of 2023.
- The establishment of a new priority rule, requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.
What will it affect?
Employment rights
Under the European Union Withdrawal Act, most UK laws in existence on or before 31 December 2020 have been preserved. These are referred to as ‘retained law.’
They include legislation such as the Working Time Regulations, the Equality Act, TUPE, the Agency Worker Regulations, and Part-time Worker Regulations.
It also extends to decisions made by the Court of Justice of the European Union on or before 31 December 2020.
Environment rights
The Habitats Regulations, the Water Framework Regulations, and air quality regulations, amongst others, seek to protect the environment. But as these are all derived from EU law, they could be scrapped under the Bill.
Health & safety
Legislation, such as Building Regulations 2010, Construction (Design and Management) Regulations 2015 and the Waste Electrical and Electronic Equipment Regulations 2013, provide the health and safety legal framework. They keep the population protected by ensuring accountability and allow for prosecution where such regulations are breached to the detriment of the public.
Consumer rights
Current consumer rights are derived from legislation, including the Consumer Rights Act 2015 and Consumer Protection from Unfair Trading Regulations 2008. These rights could disappear if they're not properly replaced.
Data and cyber security
Our current legislative framework for data protection and cyber security is covered by the sunset provisions in the Bill. While these frameworks might be retained in some form in UK law, the government has hinted at wider reaching reform, especially now that the Data Protection and Digital Information Bill has been delayed in Parliament and with the outcome of the cyber security consultation unknown. A definite “watch this space.”
Business response
There is extreme uncertainty, given a lack of clarity and clarification around the Bill and which laws will be preserved.
The House of Lords is seeking to delay the current sunset clause of 31 December 2023 due to the risk posed if the Bill canters through Parliament without due scrutiny. But it's unlikely that there's sufficient time or available resource within the civil service for this process to be properly carried out. As a result, there are significant risks to businesses.
There are potential constitutional issues to consider. The Bill can pass through Parliament in such a way that allows for a significant amount of law to be amended by the relevant Secretary of State using secondary legislation. This would mean a significant reduction in scrutiny of the proposed amendments, providing scope for errors and poor drafting, gaps where the relevant law has fallen away but not been replaced or amended, and inconsistencies given the lack of time to thoroughly cross-check.
“It is unlikely civil servants will be able to review the necessary volume of legislation necessary in time for ministers to make informed decisions about the legislation they wish to retain, and then for them to legislate appropriately, by the current deadline of 31 December 2023.
“The coming months will undoubtedly evoke a significant amount of uncertainty as civil servants work their way through the raft of retained EU law that falls under the Bill and draft appropriate new laws to ensure protection remains for all relevant parties.”
Katie Byrne – Partner, Commercial Litigation