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Maintaining EU Laws

No compromise goes far enough for the House of Lords

The clumsily named Retained EU Law (Revocation and Reform) Bill was the subject of heated debate during its report stage in the House of Lords.

Retained EU Law (REUL) was established by The European Union (Withdrawal) Act 2018 as a means of defining secondary EU law post-Brexit and providing for its amendment, revocation or replacement by subsequent UK law. The Bill proposed that all REUL would automatically be repealed pursuant to a “sunset clause” operative in most cases at the end of 2023. Any retained EU law that still applied after the end of 2023 would be renamed as “assimilated law”. Ministers would be able to exempt most but not all EU law from the “sunset clause” and “restate, reproduce, revoke , replace or update” retained REUL and assimilated law by statutory instrument. Ministers could also delay the “sunset clause” until 2026.

The government had originally estimated around 4000 (probably closer to 5000) EU laws, enacted by Statutory Instrument which should be repealed by the legislation. However the Business and Trade Secretary, Kemi Badenoch, informed the House of Commons that the number of laws to be revoked under the schedule to the proposed Act would be substantially reduced to “around 600”. In a “wishy-washy” statement  she indicated  that the government “will continue to review the remaining REUL not already revoked or reformed, or planned for revocation this year, to identify (whatever that may mean?) further opportunities for reform”.

In summary, therefore, the government has decided not to provide for the automatic repeal of around 4000 EU laws (which it must have been aware of) and instead merely wishes to identify those further opportunities.

What is also apparent is that many of the “around 600” laws as described by Bill Cash MP are “trivial, obsolete, and are not legally and/ or politically important”. Examples identified by Bill Cash included laws relating to anchovy fishing in the Bay of Biscay and the allocation of fishing rights to Sao Tome and Principe.

What is of greatest concern is that the government no longer appears to have the political courage or desire, despite the outcome of and mandates given by the Brexit referendum, the 2019 General Election and previous assurances to proceed with a significant reform of REUL. It is as though the Prime Minister, Rishi Sunak and his government have given up on replacing EU law with laws designed specifically for UK needs and to liberate the UK from the EU straitjacket  so as to promote much-needed economic growth. As described by the previous Business Secretary, Jacob Rees-Mogg MP,a “pathetically under-ambitious” policy.

Badenoch was reported to be concerned that the original Bill would be opposed in the -House of Lords which had been seen to obstruct Brexit before 2019.  A Lords amendment which was passed this week provides for REUL to be repealed, must be reviewed by a joint Parliamentary Committee and a vote in both Houses. There may be merit in the criticism of the Bill by eminent Peers such as former Supreme Court Justice, Lord Hope of Craighead who referred to the irony of the taking back control of our laws, which was what Brexit was about, and handing it back to ministers and civil servants with no opportunity for Parliamentary scrutiny. One questions, though, in the circumstances of REUL and the Brexit mandate is whether such a burdensome review procedure is necessary or would work effectively, speedily and in practice. The priority must be the reform of all REUL so as to remove consequent regulatory burdens for commerce and industry.

The proposed legislation is also only concerned with secondary legislation for which constitutional purity is of lesser value in contrast to the implementation of Brexit’s democratic values, a point emphasized by Baroness Lawlor in the Lords debates

“We are speaking here about secondary legislation which was introduced under the EU, much of it without proper parliamentary scrutiny. It did not reflect the wishes of the people of this country but was the result of a Byzantine system of laws under an unelected European Commission and handed down from on high to Parliament”.

It was also argued during the Lords debate that the unamended Bill could have a significant impact on the UK’s relationship with the EU so as to damage the workings of the UK-EU Trade and Cooperation Agreement. That argument ignores the fact that it was always contemplated that post-Brexit the UK would in any event depart from EU law and the machinery for doing so is immaterial.

The future of the Bill and its amendments remains to be determined. What is incontrovertible is that it is symbolic of such determination, or otherwise, that the present government possesses to implement essential and required Brexit reforms.

Clive Thorne

Clive Thorne is a lawyer specialising in intellectual property including patents, copyright, trademarks, breaches of confidence, privacy and data law, as well as IT Litigation Arbitration and administrative law. He practises in the UK and internationally, with experience particularly in the Far East, and is admitted to practise in Hong Kong and Australia. He has handled disputes in all relevant courts including the High Court, IPEC, Court of Appeal, Privy Council and UK Supreme Court. He writes and lectures on IP law and recently co-authored A User's Guide to Copyright. (Seventh Edition).


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