To minimise disruption on its exit from the EU, the UK converted EU law to domestic law and called it retained EU law (REUL). REUL meant that pre-Brexit laws stayed in place to avoid gaps in the law in important areas like product standards, animal welfare and employment law.
Almost three years later, REUL remains in place and there are different views on what the UK should do about it.
The Bill confirms that the UK Government’s plan is to remove all traces of EU law from the statute book by the tenth anniversary of the Brexit referendum at the latest (23 June 2026), with some exceptions for Northern Ireland.
The UK Government says there “there will no longer be a place for EU law concepts in our statute book”.
Many, including the Welsh and Scottish governments, argue this poses a risk to important legislation protecting the environment, food standards and workers’ rights. The Counsel General says the Bill could give UK Ministers “unfettered authority” to legislate in devolved areas, and lead to lower standards.
This article provides an introduction to the Bill.
There are different categories of REUL that reflect its origin in EU law. The three main categories are:
- EU-derived domestic legislation, which is domestic law giving EU law effect in the UK;
- Direct retained EU legislation, which is EU law that automatically applied in the UK as a Member State;
- Other REUL, which covers other EU rights and obligations.
REUL covers many devolved areas and affects others, like the economy.
The UK Government’s REUL dashboard estimates that there are 2,400 pieces of REUL in force, including 570 on the environment, food and rural affairs law, 318 on business, energy and industrial strategy, 137 on health and social care, 35 on digital, culture, media and sport and 16 on education.
The UK Government, says REUL “was never intended to sit on the statute book indefinitely.” Before the end of 2023, it plans to review REUL with the devolved governments to decide what to keep, reform or remove.
The Welsh Government’s requests for the dashboard to identify which legislation is reserved and devolved, and how Welsh legislation might be affected, were denied. It recently told the Senedd it has no plans of its own to assess REUL to ascertain this, and is relying on the UK Government for this determination.
The purpose of the Bill is to remove the majority of REUL by the end of 2023 unless it is ‘saved’ by Ministers up until 23 June 2026. It would:
- sunset the majority of REUL so that it expires at the end of 2023, including removing the supremacy of EU law, general principles of EU law, and directly effective EU rights;
- rename the remaining REUL “assimilated law” and remove its special status;
- provide an extension mechanism up to 23 June 2026 for more complicated reforms;
- grant Ministers powers to reverse the order of supremacy in law, so that domestic law is reinstated as “the highest form of law on the UK statute book”;
- grant UK and Welsh Ministers powers to amend, repeal and replace REUL and assimilated law more easily;
- provide domestic courts with greater discretion to depart from REUL case law; and
- repeal the Business Impact Target as part of other regulatory reforms.
Welsh Ministers could change REUL
The Bill would enable UK or Welsh Ministers to act alone or jointly, to:
- make regulations specifying which retained EU law instruments are preserved (i.e. which instruments are not subject to the 31 December 2023 sunset, nor extended sunsets). Such regulations would be subject to the negative procedure, whereby the Senedd has a period of 40 days to object and annul;
- restate secondary REUL* and other retained EU rights before the end of 2023, and thereafter secondary assimilated law before 23 June 2026;
- revoke secondary REUL without replacing it before the end of 2023, and thereafter secondary assimilated law before 23 June 2026;
- replace secondary REUL with the same objectives before the end of 2023, and thereafter secondary assimilated law before 23 June 2026;
- replace secondary REUL with alternative arrangements before the end of 2023, and thereafter secondary assimilated law before 23 June 2026;
- modify secondary REUL to take account of technological changes or developments in scientific understanding; and
- resolve compatibility issues between retained direct EU legislation and domestic law before the end of 2023, and thereafter secondary assimilated law before 23 June 2026.
*The Bill defines secondary REUL as “any retained EU law that is not primary legislation” and “any retained EU law that is primary legislation the text of which was inserted by subordinate legislation.” As noted by the House of Commons’ European Scrutiny Committee, REUL does not fit neatly into categories of ‘primary’ and ‘secondary’ legislation.
UK Ministers also have the same regulation-making powers to act alone, including in relation to devolved retained EU law. This means that in devolved areas, UK Ministers could restate secondary REUL, assimilated law and other EU rights, and could revoke, replace or update secondary REUL as described above. Use of these powers by UK Ministers would be subject to the negative procedure in the UK Parliament.
The test for using many of these powers is whether a Minister considers it appropriate.
When revoking or replacing secondary REUL, Ministers must not increase regulatory burdens, including financial costs, trade obstacles or administrative inconveniences. A key question will be whether this introduces a regulatory ceiling for the Welsh Government, which wants to improve pre-Brexit standards, where possible.
The response so far
The Counsel General has written to the UK Government saying that the Bill would authorise UK Ministers to legislate in devolved areas and reduce standards in important areas. He describes how the Welsh Government had little involvement with the Bill and calls on the UK Government to take steps to preserve and respect “Wales’ constitutional integrity” and devolution settlement.
When asked about the planned legislation in February 2022, Minister for Climate Change, Julie James, told the Senedd:
What the UK Government can't do is have a bonfire of regulations in Wales, Scotland and Northern Ireland.
A key question for Senedd Members is to what extent the Bill makes a ‘regulatory bonfire’ possible.
Removing all traces of EU law is perceived by the UK Government to be an important part of Brexit, “in keeping with [the UK’s] status as an independent, sovereign trading nation”.
The Bill would enable Ministers, and not parliaments, to significantly alter the UK’s regulatory and legal landscape. The Senedd will soon look in detail at the Bill in deciding whether to grant or withhold consent.
Article by Sara Moran, Senedd Research, Welsh Parliament