The Retained EU Law Act: where are we now?

Published 16/11/2023 | Reading Time minutes

The Retained EU Law (Revocation and Reform) Act 2023 (“the Act”) became law on 29 June, after a parliamentary process filled with lively debates, major amendments and multiple rounds of ping pong. And while the Bill was subject to a big change when its automatic sunset was removed, it mostly remained intact with a duty to report regularly added.

This article introduces our updated resources:

Our research briefing looks at the Act from a devolved perspective.
Our timeline explains key dates up to June 2026.
Examples of the Act in practice;
Our infographic shows how Welsh and UK Ministers can make changes to REUL; and
Our clause generator gives a quick summary of the Act’s provisions.

Retained EU Law recap

To minimise disruption when exiting the EU, the UK converted EU law to domestic law and called it retained EU law (REUL). This meant that pre-Brexit laws stayed in place with the aim of avoiding gaps in important areas like product standards, animal welfare and employment law. REUL became a distinct body of law and there are different views on what should be done with it.

Summary

The Act puts some of the UK Government plans for REUL into place and grants powers to UK and Welsh Ministers to make future changes.

The Welsh Government opposed the legislation from the start, believing that REUL works well and could be updated as needed.

The Senedd refused consent for the Bill on two occasions, in March 2023 and June 2023.

The Act:

revokes some REUL so that it expires on 31 December 2023. This is the REUL listed on Schedule 1, EU-derived rights, the principle of supremacy and general principles of EU law;
renames remaining REUL “assimilated law” from 1 January 2024;
grants UK and Welsh Ministers powers to amend, repeal and replace REUL and assimilated law more easily;
grants UK and Welsh Ministers powers to recreate the effect of REUL supremacy to a limited extent in relation to specific instruments;
provides domestic courts with greater discretion to depart from REUL case law; and
repeals the Business Impact Target as part of other regulatory reforms.

Timeline

The Act sets the below timeline.

Key:

Remove

Save

Preserve

Reform

Procedural

31 October 2023

Powers to exempt REUL from Schedule 1 expired.

23 December 2023 (+30 days)

Reporting period 1. The UK Government must report to the UK Parliament within 30 days of this date.

31 December 2023

The following REUL expires:

(i) REUL listed on Schedule 1,

(ii) EU-derived rights etc,

(iii) principles of supremacy and

(iv) general principles of EU law.

01 January 2024

REUL renamed “assimilated law”.

23 June 2024 (+30 days)

Reporting period 2. The UK Government must report to the UK Parliament within 30 days of this date.

23 December 2024 (+30 days)

Reporting period 3. The UK Government must report to the UK Parliament within 30 days of this date.

23 June 2025 (+30 days)

Reporting period 4. The UK Government must report to the UK Parliament within 30 days of this date.

23 December 2025 (+30 days)

Reporting period 5. The UK Government must report to the UK Parliament within 30 days of this date.

23 June 2026

The majority of the Ministerial powers in the Act expire.

Reporting period 6. The UK Government must report to the UK Parliament within 30 days of this date.

Reporting periods: The UK Government must report every six months to the UK Parliament within 30 days of the reporting period dates listed above. Reports must give a summary of the REUL dashboard, explain changes made to REUL and set out plans to remove or reform REUL in the following reporting period.

Examples of the Act in practice

Here are some examples of the Act in practice at the Senedd.

Windsor Framework

The procedure for regulations implementing parts of the Windsor Framework was changed from the affirmative to the negative procedure. This meant that, instead of needing the Senedd’s approval to become law, Members had 40 days to object before the regulations automatically became law.

Environment (Air Quality and Soundscapes) (Wales) Bill

The Welsh Government’s Bill as introduced defined which legislation should be considered primary legislation which included retained direct EU law (RDEUL). According to the Legislation, Justice and Constitution (LJC) Committee, including RDEUL as primary legislation could cause confusion because the Act downgrades RDEUL to secondary legislation. The Welsh Government agreed to amend the definition in the Bill as a result.

Devolution and legislative consent

The Welsh Government and Senedd can be bypassed during REUL reform because the UK Government and the UK Parliament can make changes in devolved areas without obtaining consent from the Welsh Ministers or the Senedd.

Nevertheless, a curious situation has emerged.

The Welsh Government has notified LJC Committee of three situations where UK Ministers have sought, and been granted, consent from Welsh Ministers to make changes to REUL.

LJC Committee is pursuing whether consent arrangements may have been agreed outside of existing devolution practises. So far, three Ministers have described their experiences:

Minister for Rural Affairs and Trefnydd shared correspondence from Lord Benyon in July seeking “formal consent” to implement parts of the Windsor Framework.
Minister for Climate Change confirmed in September that the UK Government has committed not to use its powers in devolved areas without consent. She said that, had Welsh Ministers refused consent or not given their decision in time, the regulations would not have been laid in the UK Parliament. The Minister added that Welsh Ministers were given “a very tight timeframe” to consider consent.
Counsel General and Minister for the Constitution confirmed on 12 October that no mechanism’s been agreed but he’d emphasised the need for a clear process in writing to the UK Government.

Schedule 1

The Bill’s sunset clause, that would’ve automatically revoked the majority of REUL, has been replaced by a list of 587 pieces of REUL that’ll expire at the end of 2023, Schedule 1. UK and Welsh Ministers can exempt REUL from Schedule 1, thus saving it, but must do so by 31 October 2023.

Welsh Government’s initial review found no issues with the contents of Schedule 1 and it said it needn’t use its powers to exempt anything from it. It later notified committees that it wanted to save some items, including on biocidal products and air pollution.

The UK Government saved all of these except the National Emissions Ceilings Regulations which the Welsh Government wants to replace but the UK Government doesn’t. These are described as “vital for reducing air pollution” by ClientEarth and 47 others. The Minister for Climate Change said she’d keep committees updated, and answered questions on this at the Climate Change, Environment and Infrastructure Committee on 26 October, but time has run out for Welsh Ministers to use their powers to save the regulations.

Infographic

The infographic below shows how Welsh or UK Ministers could change REUL under the Act.

Clause generator

Use our clause generator for a quick summary of the Act’s sections. Select all or view them by theme, then click on a section number to generate a summary.

Select a category:

Select a section:

Section 1

■ Section 1 sunsets EU-derived subordinate legislation and retained direct EU legislation listed in Schedule 1 on 31 December 2023 unless it is saved by Ministers.

■ Section 1(4) provides an option to exempt REUL from Schedule 1, thereby saving it from being revoked on 31 December 2023. This must have been done by 31 October 2023 by either UK Ministers or Welsh Ministers, or both acting jointly.

Section 2

Section 2 sunsets EU-derived rights, powers, liabilities, etc in section 4 of the EU (Withdrawal) Act 2018, and anything that has been retained by virtue of it on 31 December 2023.

Section 3

Section 3 abolishes the supremacy of EU law after the end of 2023 and introduces a new hierarchy in domestic law.

Section 4

Section 4 abolishes general principles of EU law after the end of 2023. These include legal certainty, equal treatment, proportionality, respect for fundamental rights and the precautionary principle.

Section 5

Section 5 renames REUL that does not sunset on 31 December 2023 as “assimilated law” from 1 January 2024.

Section 6

Section 6 changes the role of the courts so that they are no longer bound by retained EU case law. In certain circumstances, the Counsel General can refer points of law on REUL cases within six months, which can ultimately result in the case being heard by the Supreme Court. The Counsel General may also become party to proceedings related to the meaning or effect of Welsh legislation.

Section 7

Section 7 allows domestic law to be read and given effect so that it is compatible with retained direct EU law (RDEUL). This power expires on 23 June 2026.

Section 8

Section 8 requires courts and tribunals to issue incompatibility orders where they decide that a provision of RDEUL is incompatible with domestic law, or if domestic law was incompatible with RDEUL and section 7 regulations have been made. Section 7 allows domestic law to be read and given effect so that it is compatible with RDEUL.

Section 9

Section 9 modifies the procedures that apply when amending REUL under EUWA18. As a result, it will become easier to amend certain categories of REUL.

Section 10

Section 10 amends EU (Withdrawal) Act 2018 in relation to procedural requirements for statutory instruments.

Section 11

Section 11 grants powers to UK or Welsh Ministers acting alone or jointly to restate any secondary REUL before the end of 2023.

Section 12

Section 12 replicates section 11 so that UK or Welsh Minister acting alone or jointly can restate secondary assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc. before 23 June 2026.

Section 13

Section 13 makes general provisions about sections 11 and 12.

Section 14

Section 14 is a broad power that allows UK or Welsh Ministers acting alone or jointly to

■ revoke secondary REUL without replacing it, or

■ replace it with provision to achieve the same or similar objectives, or

■ replace it with alternative arrangements.

Ministers must not increase the regulatory burden when revoking or replacing REUL under this section. These powers expire on 23 June 2026.

Section 15

Section 15 allows UK or Welsh Ministers, acting alone or jointly, to modify secondary REUL and secondary assimilated law to take account of technological changes or developments in scientific understanding.

Section 16

Section 16 amends legislation allowing UK Ministers to remove and reduce burdens. “Burden” includes any of the following: a financial cost, an administrative inconvenience an obstacle to efficiency, productivity or profitability, or a sanction, criminal or otherwise, which affects the carrying on of any lawful activity.

Section 17

Section 17 of the Act places a duty on the UK Government to produce reports on the Act covering six monthly periods and places requirements for what the report should contain. Each report must provide:

■ A summary of the updated REUL dashboard;

■ A progress update on the revocation and reform of REUL in the reporting period;

■ A plan for revoking and reforming REUL in subsequent reporting periods, including a list of provisions.

Section 18

Section 18 abolishes the Business Impact Target (BIT) as part of other regulatory reforms. The BIT does not apply to regulatory provisions in devolved areas.

Section 19

Section 19 grants UK Ministers powers to make regulations in consequence of the Act as they consider appropriate, which includes the power to modify “any” enactment.

Section 20

Section 20 clarifies the scope of the regulation-making powers in the Bill, and introduces Schedules 4 and 5 of the Act.

Section 21

Section 21 defines terms used in the Act.

Section 22

Section 22 sets out when each provision of the Act comes into force.

Section 23

Section 23 states the Act’s full title and confirms that it applies to England, Wales, Scotland and Northern Ireland.

Schedule 1

Schedule 1 lists REUL to be revoked on 31 December 2023. lists retained direct EU law (RDEUL).

Schedule 2

Schedule 2 makes amendments that are consequential on the renaming of REUL as “assimilated law” in section 5 of the Act. For example, references to specific categories of REUL in other enactments are replaced with references to the equivalent category of assimilated law.

Schedule 3

Schedule 3 makes amendments that are consequential to section 9, including amending parliamentary procedure for certain REUL.

Schedule 4

Schedule 4 outlines restrictions on devolved Ministers, such as that they can’t make provision outside devolved competence.

Schedule 5

Schedule 5 sets procedures for the regulation-making powers in the Bill, including providing a sifting role to a Senedd committee. This is the Legislation, Justice and Constitution Committee.

Article by Sara Moran and Joe Wilkes, Senedd Research, Welsh Parliament