Insights

Retained EU Law (Revocation and Reform) Bill

Following the UK’s exit from the European Union, the post-Brexit European Union (Withdrawal) Act 2018 incorporated former EU law into UK law as ‘retained EU law’. Essentially, retained EU law was captured at the point of Brexit and forms part of our legal framework. Retained EU law touches many areas of law, including employment, data protection and environmental law. On 22 September 2022, the government introduced the Retained EU Law (Revocation and Reform) Bill, which would amend the existing position in relation to retained EU law as follows:

• The Bill proposes to introduce ‘sun-setting’ of retained EU law, whereby retained EU law would be automatically repealed on 31 December 2023, unless ministers decide to retain and preserve them.

• The Bill allows for the extension of sun-setting of selected retained EU law until 31 December 2026, to give ministers more time to assess if certain retained EU laws should be preserved where necessary.

• After 31 December 2023, any retained EU law that has been preserved will become known as “assimilated law”. EU law will no longer assist in the interpretation of assimilated law.

• The Bill will allow UK courts to depart from EU law (including case law) in respect of assimilated law following 31 December 2023.

• In order for retained EU law to be more easily repealed, amended and replaced prior to 31 December 2023, the Bill provides powers to create secondary legislation without the need to pass an Act of Parliament.

• If the Bill becomes law, it will remove the current restrictions of powers in other primary legislation on amending retained direct EU legislation.

The Bill has been introduced to make the process easier for ministers to replace retained EU law with UK domestic legislation. However, in respect of any retained piece of EU law where no active steps are taken to preserve and ‘assimilate’ this, that law will automatically cease to apply. This has the potential to affect significant parts of the UK’s employment law regime e.g. TUPE, Working Time and Agency worker protections.