Will there be a sunset for retained EU law in Wales?

Published 14/11/2022 | Reading Time minutes

The Senedd must soon decide whether to consent to the UK Government’s Retained EU Law (Revocation and Reform) Bill.

Our briefing explains how this Bill starts a countdown to 31 December 2023, when the majority of REUL will automatically expire unless it is saved by Ministers. Known as ‘sunset’ clauses, these set a date on which legislation will expire in the future. Before then, UK and Welsh Ministers must decide what to save, reform or remove. UK Ministers can extend the deadline up to 23 June 2026, the tenth anniversary of the Brexit referendum.

The Bill would grant powers to Welsh Ministers to take action within devolved areas with the Senedd’s approval. But with the UK Parliament’s approval, UK Ministers could do the same in respect of devolved areas, effectively bypassing the Welsh Government and the Senedd.

The governments could agree or disagree on what to do with devolved REUL, which will be explored in further analysis.

Basics

Retained EU Law (REUL) is EU law that the UK converted to domestic law in the run up to Brexit to minimise disruption. It’s a distinct body of law covering all aspects of our daily lives.

REUL covers a mix of devolved areas for which the Welsh Government is responsible, like the environment, food, rural affairs, energy and fisheries, and reserved areas for which the UK Government is responsible, like trade, taxes, medical devices and electronic communications.

Clause generator

Use our clause generator for a quick summary of the Bill’s 23 clauses and three schedules. Select all clauses or view them by category, then click on a clause number to generate a summary.

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Clause 1

■ Clause 1 sunsets EU-derived subordinate legislation and retained direct EU legislation (RDEUL) on 31 December 2023 unless it is saved by Ministers.

■ Clause 1(2) provides an option to avoid this and future sunsets if the REUL is specified in regulations made by UK Ministers, Welsh Ministers or both acting jointly.

Clause 2

Clause 2 provides only UK Ministers with the power to extend the first automatic sunset from 31 December 2023 up to the 23 June 2026. The UK Government originally said this could be used “to implement more complex reforms”.

Clause 3

Clause 3 sunsets the 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.

Clause 4

Clause 4 abolishes the supremacy of EU law at the end of 2023 and introduces a new hierarchy in domestic law.

Clause 5

Clause 5 abolishes general principles of EU law at the end of 2023. These include legal certainty, equal treatment, proportionality, respect for fundamental rights and the precautionary principle.

Clause 6

Clause 6 renames REUL that survives the first automatic sunset on 31 December 2023 as “assimilated law” from 1 January 2024.

Clause 7

Clause 7 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.

Clause 8

Clause 8 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.

Clause 9

Clause 9 allows for courts and tribunals to issue incompatibility orders where they decide that domestic law is incompatible with RDEUL.

Clause 10

Clause 10 modifies the procedures that apply when amending REUL under the EU (Withdrawal) Act 2018. As a result, it will become easier to amend certain categories of REUL.

Clause 11

Clause 11 amends the EU (Withdrawal) Act 2018 in relation to procedural requirements for statutory instruments.

Clause 12

Clause 12 grants powers to UK or Welsh Ministers acting alone or jointly to restate any secondary REUL before the end of 2023.

Clause 13

Clause 13 replicates clause 12 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.

Clause 14

Clause 14 provides general guidance in relation to clauses 12 and 13.

Clause 15

Clause 15 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 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 clause. These powers expire on 23 June 2026.

Clause 16

Clause 16 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.

Clause 17

Clause 17 amends legislation allowing UK Ministers to remove and reduce burdens. “Burden” means 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.

Clause 18

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

Clause 19

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

Clause 20

Clause 20 clarifies the scope of the regulation-making powers in the Bill, and introduces Schedules 2 and 3 to the Bill.

Clause 21

Clause 21 defines terms used in the Bill.

Clause 22

Clause 22 sets out when each clause comes into force.

Clause 23

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

Schedule 1

Schedule 1 makes amendments that are consequential to clause 10, including amending parliamentary procedure for certain REUL.

Schedule 2

Schedule 2 outlines restrictions on devolved Ministers, such as that they can’t make provision outside devolved competence.

Schedule 3

Schedule 3 sets procedures for the regulation-making powers in the Bill, including providing a sifting role to a Senedd committee.

The Senedd’s Legislation, Justice and Constitution Committee is currently the responsible committee for sifting regulations made under the EU (Withdrawal) Act 2018 and EU (Future Relationship) Act 2020.