Date Legislation considered: 01 November 2022
Date Legislation in Force: Not yet in force
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment/ Workers/ Social Security
What does the legislation do?
The Retained EU Law (Revocation and Reform) Bill (“the Bill”) was introduced to the House of Commons on 22 September 2022. The Explanatory Notes state that its purpose is “to provide the Government with all the required provisions that allow for the amendment of retained EU law (REUL) and remove the special features it has in the UK legal systems.” The Explanatory Notes further state that “the Bill will give effect to policies that were set out in the Benefits of Brexit Report published in January 2022 and the Government’s announcement of the review into the substance and status of REUL in September 2021”
The Bill contains 23 clauses and 3 Schedules, addressing a range of issues. It makes provision for significant changes to the current status, operation, and content of a body of domestic law that is known as “retained EU law” . In simple terms retained EU law (“REUL”) is a category of domestic law created at the end of the transition period (11pm on 31 December 2020). It is made up of certain EU laws that were ‘copied and pasted’ or preserved in the UK statute book in order to minimise disruption on EU Exit and avoid gaps in the law in important areas such as employment law and the environment.
This interim report only addresses Clauses 1 and 2 of the Bill, which are concerned with the repeal or ‘sunsetting’ of most REUL. Further reports will be published here as the Bill makes its passage through Parliament
Sunset of REUL
Clause 1 of the Bill, which comes into force on the day that the Act is passed, sets out how the sunset mechanism will work.
It provides that unless action is taken by UK Ministers or a devolved authority (in devolved areas) to preserve “EU-derived subordinate legislation” and “retained direct EU legislation” (which are forms of REUL), it will cease to exist on the statute book on 31 December 2023.
Clause 2 enables UK Ministers to postpone the sunset until as late as 23 June 2026 for some but not all retained EU law, via statutory instrument.
The sunset provision does not apply to certain financial services legislation which is expressly excluded.
Clause 1(4) of the Bill sets out the “EU-derived subordinate legislation” that is in scope of the sunset. It includes domestic subordinate legislation made under powers within the European Communities Act 1972; or that operated immediately before 11pm 31 December 2020 for the purpose of implementing EU obligations etc.
“Retained direct EU legislation” is defined in section 20(1) of the European Union (Withdrawal Act) 2018 (“EUWA”) and includes all EU regulations, decisions or tertiary legislation and certain parts of the EEA agreement.
Sunset and Relevant Separation Agreement Law
“Relevant separation agreement law” is defined in section 7C(3) of EUWA. It includes parts of EUWA; Part 3 or section 20 of the European Union (Withdrawal Agreement) Act 2020 and any domestic law that is for the purposes of or within scope of the Withdrawal Agreement, EEA EFTA Separation Agreement and Swiss Citizen’s Rights Agreement.
Section 7A(3) and 7B(3) of EUWA provide that every enactment (including the Bill) is to be read and has effect subject to the rights and liabilities etc. of the Withdrawal Agreement and EEA EFTA Separation Agreement.
The IMA considers that some “relevant separation agreement law” will fall within the definition of “EU-derived subordinate legislation”. This is acknowledged by the UK Government. Paragraph 76 of the explanatory notes to the Bill provides that “relevant separation agreement law” is an example of a category of REUL that a sunset extension could apply to.
During second reading of the Bill on 25 October 2022, the former Parliamentary Under- Secretary to the Department for Business, Energy and Industrial Strategy also stated that “some retained EU law in the scope of the sunset is required to continue to operate our international obligations, including the trade and co-operation agreement, the withdrawal agreement and the Northern Ireland protocol. Therefore, I am very happy to make a commitment today that the Government will, as a priority, take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law. We will set out where retained EU law is required to maintain international obligations through the dashboard, so that the public can scrutinise it.”
The IMA is concerned that the Bill and accompanying documentation fails to make it clear how “relevant separation agreement law” will be affected by the sunset provisions. This is unsatisfactory for EU and EEA EFTA citizens or indeed anyone who may have to navigate such law, and there is clearly potential for confusion.
The IMA has discussed the provisions with officials at Cabinet Office who have confirmed that:-
“ The UK Government is committed to ensuring the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland Protocol (NIP) and the Trade and Cooperation Agreement (TCA) after the sunset date. The UK Government will also ensure the necessary legislation is in place to ensure that the terms of the Withdrawal Agreement (WA) are upheld, including regarding citizens’ rights. The aim of this Bill is not to alter the rights of EU nationals which are protected, or eligible to be protected, by the relevant citizens’ rights provisions contained within the WA.”.
Officials have further confirmed that they will use the powers in the Bill (Clause 1(2)) to ensure that the necessary “relevant separation agreement law” is in place to maintain international obligations.
The IMA is continuing to liase with officials at the Cabinet Office. In the meantime, any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.