The Retained EU Law (Revocation and Reform) Act 2023 has become law and in this blog article we will shortly reflect on its importance for the UK’s post-Brexit legislative landscape.
Up to this point, the general framework for the interpretation of EU laws was the EU (Withdrawal) Act 2018 (EUWA), but that was only ever seen as a temporary fix to maximise continuity in the past couple of years. The new Act – which will enter into force on 1 January next year – seeks to bring about a more fundamental change and speed up the process of removing EU-derived laws.
To begin with, the previous regime provided a sunset clause under which all the retained EU laws would automatically be revoked at the end of 2023, which generated widespread concerns from a variety of stakeholders. In a welcome move, however, the new regime contains an exhaustive list of laws (part of Schedule 1) that will be revoked at the end of this year, whilst any laws not listed in the revocation schedule will be retained automatically. Incidentally, the term “retained EU law” used up until now will be replaced with “assimilated law”.
Further, the Retained EU Law Act abolishes the supremacy of EU law. To date, retained EU law still had the effect of supremacy in relation to relevant UK legislation made before 1 January 2021. Now, the supremacy of EU law over domestic legislation will come to an end, no matter when that domestic legislation was passed. Similarly, general principles of the EU law – such as proportionality and the principle of equal treatment – are now abolished. Much of these principles were derived from the EU case law. The practical result of this change is that the UK legislation cannot be disapplied due to inconsistencies with either EU laws or legal principles.
In order to give lower courts the possibility to depart from the retained EU law (other than by appeal), they have now been given an opportunity to refer points of law to the Court of Appeal or the Supreme Court, in the case of a reference concerning (wholly or in part) retained case law of the Supreme Court. The referral is available if there is a point of law of “general public importance”. From a practical perspective, it remains to be seen how high the threshold for referrals will be set – if it is set too low, this may lead to procedural abuse by some parties who are looking to cause delays and increase overall litigation costs; on the other hand, very high threshold could mean a status quo as there will be few opportunities to develop new case law.
As for the higher courts (such as the Court of Appeal and the Supreme Court), they may depart from retained case law – which includes both EU case law and any domestic case law where the underlying issue concerns EU law – provided they follow the new procedure. Departure from retained case law is allowed if the higher courts considered, among other things, whether there were “changes of circumstances” and the “extent to which the retained domestic case law restricts the proper development of domestic law”. This arguably leaves the courts with a broad discretion and it will be interesting to see how they exercise it.
In conclusion, it should be worth noting that the Government has now set up the Retained EU Law Dashboard, which is a periodically updated catalogue of retained EU legislation.
This is merely a glimpse into the vast number of changes that the Retained EU Law (Revocation and Reform) Act 2023 will bring about. Whilst the removal of the sunset clause is a welcome move that removed a potential Brexit cliff edge, we may, however, see a raft of litigation in the long term attempting to re-interpret UK laws in the absence of EU requirements. Coupled with the possibility of lower courts referring points of law to higher courts, there may be significant delays in the court and tribunals system, whilst simultaneously adding further complexity to the already intricate post-Brexit landscape.
Our Dispute Resolution team at Buckles Solicitors LLP regularly advises clients in all sectors and ranging in size from start-ups and entrepreneurs to large national and international businesses, as well as individuals. We also have an International team comprising lawyers with expertise in both UK law and French, Spanish, Italian or German law. If you need advice on your obligations or are thinking of commencing court proceedings, particularly if your matter concerns the EU or its laws, please contact us for further advice.
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