The Retained EU Law (Revocation and Reform) Act 2023 (the RRA) was granted Royal Assent on 29 June 2023. Although pared back in ambition from the original intent to disapply all retained EU law (REUL) by the end of 2023, it does still impose important changes.
In this article we explain the effect of the RRA, the changes it makes to REUL and how it is interpreted, the role of the courts, and the RRA's interaction with the Withdrawal Agreement and the Trade and Co-operation Agreement with the EU.
The European Union (Withdrawal) Act 2018 (the EU(W)A)
In order to understand what the RRA does, it is necessary to go back to the EU(W)A. We have previous explained the EU(W)A in detail in a number of articles, the most recent of which is our 'Brexit - Key legislation explained' article.
Following the end of the Brexit implementation period on 31 December 2020, the EU(W)A created a new category of domestic law – retained EU law (REUL). REUL was made up of several different 'baskets' of law:
- EU-derived domestic legislation, including both domestic primary legislation and domestic secondary legislation passed to comply with the UK's EU obligations (section 2 EU(W)A);
- retained direct EU legislation – mainly directly effective EU regulations and decisions (section 3 EU(W)A); and
- rights, powers, duties etc. that had been directly effective in the UK under section 2(1) of the European Communities Act 1972 (section 4 EU(W)A).
The EU(W)A also retained EU and UK case law prior to the end of 2020 that related to anything falling within the above categories.
Ministers – and the devolved administrations – were given powers to amend REUL through secondary legislation up until 31 December 2022. Many hundreds of statutory instruments were passed using that power in order to ensure that REUL worked appropriately following the end of the transition period.
Under the EU(W)A, most courts below the level of the Supreme Court and Court of Appeal were bound to interpret REUL in line with relevant judgments of the EU and UK courts made before the end of 31 December 2020. UK courts could have regard to, but were no longer bound, by principles laid down, or decisions made, by the EU courts after that date.
The effect of the EU(W)A was therefore to freeze in place the legal position as it applied in the UK immediately before 1 January 2023, save where amended by Ministers or the devolved administrations.
The Retained EU Law (Revocation and Reform) Act 2023
When first laid before Parliament, the intent behind the Revocation and Reform Bill was to reverse the position set out in the EU(W)A. Instead of the default position being the preservation of REUL unless amended or disapplied, the Bill contained a sunset provision revoking the majority of REUL (except provisions in UK primary legislation) at the end of 2023 unless specifically exempted.
This triggered a scramble by civil servants to try to identify all of the applicable REUL, analyse the effect of its revocation and exempt certain provisions where required.
The proposed blanket revocation of most REUL led to much criticism and, on 10 May 2023, the Government announced that it would abandon the sunset clause. Instead, schedule 1 to the RRA now contains a list of around 600 pieces of legislation which, under section 1, will cease to have effect at the end of 2023.
However, under section 2 RRA, the directly effective rights, powers and duties preserved by section 4 EU(W)A will still be repealed at the end of 2023.
These revocations are in addition to the list of REUL revoked by section 1 of the Financial Services and Markets Act 2023.
Under section 5 RRA, from the end of 2023, REUL will be renamed 'assimilated law', with subsequent variations thereof for different types of former REUL. All references to REUL in legislation are to be read accordingly.
The RRA also removes the general principles of EU law from domestic law from the beginning of 2024, the effect of which had previously been preserved by section 5(5) EU(W)A.
Amending REUL and assimilated law
As mentioned above, the EU(W)A contained a time-limited power for Ministers and devolved administrations to amend REUL to ensure that it worked properly following Brexit. That power has now expired.
The RRA updates certain other existing powers to amend REUL and creates some new ones.
Firstly, section 9 RRA amends schedule 8 EU(W)A. Schedule 8 restricted the use of powers in other legislation to amend certain types of retained direct EU legislation. These restrictions are now removed making it easier to use the powers under other Acts to amend retained direct EU legislation such as retained EU regulations.
Secondly, although not strictly a modification power, section 11 RRA contains a power for Ministers and devolved administrations to 'restate' retained EU law that is –
- not primary legislation or
- a provision in primary legislation inserted by secondary legislation.
(together known as 'secondary retained EU law')
This will include the codification of any directly effective rights etc. formerly retained under section 4 EU(W)A.
Where a provision is restated, it will not itself be REUL. However, the section allows for the effect of the principle of supremacy, EU principles and interpretation by retained EU caselaw to be reproduced in relation to a restated provision.
Any restatement under section 11 must be done before the end of 2023 and will be used to restate those provisions of REUL that are due to be revoked at the end of this year.
Section 12 then contains a similar power that can be used once the sunset provisions have taken effect at the end of 2023. This allows for the restatement of assimilated law, as well as those provisions of REUL that were subject to the sunset provisions. That power can be used until 23 June 2026 and will be an important safety mechanism where it is discovered that any particular provision should not have been revoked.
Neither the section 11, nor section 12, power can be used to codify or reproduce the principle of supremacy of EU law in general terms, nor do they allow any retained general principle of EU law to be restated in general terms.
Thirdly, section 14 RRA provides a power for Ministers and devolved administrations to revoke and/or replace any secondary retained EU law, or the same categories of assimilated law.
Upon revocation, alternative provisions can be made as deemed appropriate or to achieve the same effect as the revoked provision, so long as no regulatory burden is increased.
Again, that power is available until 23 June 2026.
Fourthly, under section 15, Ministers or the devolved administrations may make regulations to amend secondary retained EU law or the same categories of assimilated law to take account of developments in technology or scientific understanding. There is no time limit to that power.
Fifthly, section 16 amends Part 1 of the Legislative and Regulatory Reform Act 2006 to include retained direct EU legislation (and the same type of assimilated law) in the list of types of legislation that a Minister can amend by order to remove or reduce burdens.
In order to try to help keep track of the changes, the Government is required to publish a dashboard setting out the list of REUL and assimilated law, which must be updated every month.
Removing the supremacy of EU law
Whereas the EU(W)A had preserved the supremacy of EU law with respect to laws passed before 31 December 2020, the RRA amends section 5 of the EU(W)A to explicitly state that the principle of supremacy no longer applies in domestic law.
After the end of 2023, as far as possible, retained direct EU legislation must be read and given effect in a way which is compatible with all other domestic legislation.
However, under section 7 RRA, Ministers and devolved administrations have a power to make regulations before the end of 23 June 2026 re-imposing the principle of supremacy in regard to any specific piece of retained direct EU legislation.
Section 8 RRA adds a new section to the EU(W)A requiring the courts to make an 'incompatibility order' where there is conflict between a provision of retained direct EU legislation and a domestic enactment.
Among other things, the incompatibility order may:
- set out the effect in the case concerned of one provision taking priority over another;
- impose a delay before the order comes into force; or
- remove or limit the effect of the operation of the relevant provision in any other way before the order comes into force, for example, where this might give rise to unfairness to individuals or other effects contrary to the public interest.
Making it easier for courts to depart form retained case law
The RRA makes it easier for UK courts to depart from previous decisions of the Court of Justice of the EU. Previously, when considering whether to depart from retained EU caselaw, the Supreme Court and Court of Appeal (together, the Higher Courts) applied the test of whether it appeared 'right to do so'.
The RRA amends section 6 EU(W)A so that the Higher Courts must have regard (among other things) to the following specified factors:
- The fact that decisions of a foreign court are not (unless otherwise provided) binding.
- Any changes of circumstances which are relevant to the retained EU case law.
- The extent to which the retained EU case law restricts the proper development of domestic law.
These reflect some of the factors that the Court of Appeal took into account when deciding whether to depart from retained EU case law in TuneIn Inc v Warner Music UK Ltd & Anor.
In addition, a new subsection is added to section 6 EU(W)A under which the Higher Courts may depart from their own retained domestic case law (i.e. decisions of the UK courts before 31 December 2020 that relate to REUL) where they consider it right to do so, having regard to (among other things):
- the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart;
- any changes of circumstances which are relevant to the retained domestic case law; and
- the extent to which the retained domestic case law restricts the proper development of domestic law.
New sections are also inserted into the EU(W)A allowing the lower courts and law officers of the UK Government and the devolved administrations to refer points of retained case law (either EU or domestic) to the Higher Courts.
Law officers will also have a right to intervene in proceedings before the Higher Courts where the court is being asked to depart from retained case law.
The effect on the Withdrawal Agreement
Along with REUL, the EU(W)A (as amended in 2020) also created another new category of domestic law – 'relevant separation agreement law' (RSAL). This is a category of law intended to give effect to the UK's obligations under the Withdrawal Agreement, including the Northern Ireland Protocol.
As defined under section 7C(3)(a) EU(W)A, it sweeps together a range of instruments that become domestic law under section 7A, 7B, as well as through statutory instruments made under sections 8B and 8C, and Parts 1B and 1C of Schedule 2.
There would obviously be some EU legislative acts that could fall within both REUL and RSAL – such as the regulations set out in the Annexes to the Northern Ireland Protocol. To prevent this, under sections 3 and 4 EU(W)A, any EU law that would otherwise have become REUL under those provisions does not become REUL if it is RSAL that has effect through sections 7A or 7B EU(W)A.
This means that the EU law that the UK is obliged to adhere to under the Withdrawal Agreement takes effect not as REUL, but as RSAL.
Therefore, the changes to the EU(W)A do not affect the UK's obligations under the Withdrawal Agreement and it is made explicit in the amendments to sections 5 and 6 EU(W)A that the principle of supremacy and the general principles of EU law will continue to apply to RSAL.
The effect on the Trade and Co-operation Agreement
The position in relation to the Trade and Co-operation Agreement with the EU (the TCA) – together with the Nuclear Cooperation Agreement and the Security of Classified Information Agreement – is likely to be more complex.
Unlike the Withdrawal Agreement, the UK is not required to implement the TCA or its associated agreements into domestic law, or to provide mechanisms to allow individuals to litigate rights under them before the domestic courts.
As such, the European Union (Future Relationship) Act 2020 (the EU(FR)A) is intended to ensure that the UK's domestic law does not contravene the obligations that the UK has taken on at an international level under those agreements.
It does so in the following four ways:
- It directly amends some parts of domestic law, including some retained EU law.
- It incorporates chunks of the TCA into UK law.
- It provides a broad power for Ministers and the devolved administrations to make regulations to amend domestic law as they consider necessary to implement or deal with any matters arising out of the relevant agreements and any future agreement made under them.
- Section 29 provides a general interpretative gloss to ensure that domestic law (including REUL) is compatible with the relevant agreements. It states that, where the relevant agreements have not been implemented by any other means, the courts must read domestic law in a way which is compatible with the agreements.
Where REUL has been amended under (a) and (c), the way in which that REUL is interpreted will be affected by the RRA. However, regulations may be made under the RRA to preserve the principle of supremacy of EU law in relation to that REUL where necessary to meet the obligations under the TCA and other agreements.
In addition, the courts will still have regard to those agreements when interpreting the relevant provision.
Finally, the general interpretative gloss in section 29 EU(FR)A will continue to apply to REUL that has not been amended to implement the agreements. Again, regulations may be made under the RRA to preserve the principle of supremacy as needed to comply with the agreements.
Where such regulations are not made, it will be interesting to see whether the courts consider that the explicit statutory provision removing that principle trumps the section 29 gloss even where the principle of supremacy is required to ensure domestic law complies with the relevant agreements.
It is likely that the courts will find a pragmatic way through any such query that does arise, and will look to ensure that legislation is interpreted so as to comply with international obligations absent any explicit intention to do otherwise.
In view of the above, there are a few things to watch out for over the coming while.
- Be aware of the list of REUL that will be revoked at the end of 2023, and the effect of that revocation in the absence of any restatement.
- Be wary of relying on the Government's dashboard of REUL for what remains. As of the date of writing, the dashboard does not appear to be completely comprehensive.
- Be alert to amendments to assimilated law going forward and note that – despite the best efforts of the Lords during the passage of the RRA – the Parliamentary procedure for making such amendments allows for much less scrutiny than was the case for amendments to REUL made under the EU(W)A.
- Watch out for the first few cases in which the courts are asked to consider the interpretation of assimilated law absent the doctrine of supremacy and how they seek to balance provisions which conflict with other domestic law.
- Keep an eye on how the Higher Courts respond to the encouragement from Parliament to depart from retained case law. It may be that they err on the side of legal certainty and continue to tread a careful path regardless.
If you have any questions about this article, please contact Kieran Laird.