09 January 2023

EIAG: The Future of Retained EU Law

Known as “retained EU law” (REUL), there has been a debate as to what should be done about it.  As the UK is no longer part of the EU it could in theory repeal, replace or reform this body of law as it so chooses but in practice there are significant constraints.

Introduction

During the UK’s 47 years as a member of the European Union, EU law was given effect in our domestic law partly through recognition that certain rules, notably those contained in a number of EU Treaty provisions and in EU regulations, were required to apply directly in all Member States and partly by the incorporation of the rules into UK legislation.  Sometimes such legislation took the form of statute law (that is, the passing of an Act of Parliament).  But more frequently under a procedure in the European Communities Act 1972, new EU-related laws, particularly those implementing EU directives, were brought in by way of delegated legislation (that is, a law proposed by a minister that Parliament can reject but not amend).  This procedure reflected the fact that EU law went through multiple levels of scrutiny nationally as well as in the Council of Ministers and the European Parliament, before it came to national parliaments for their adoption.

The May and Johnson governments recognised, when agreement was reached on the terms of the UK’s withdrawal and of the future Trade & Co-operation Agreement (TCA), that there could be no question of completing the replacement of this large body of EU law by the time the UK left the EU on 31 January 2020.  They therefore legislated to incorporate all these EU laws into the UK’s national statute book on an interim basis through the European Union (Withdrawal) Act 2018.

Known as “retained EU law” (REUL), there has been a debate as to what should be done about it.  As the UK is no longer part of the EU it could in theory repeal, replace or reform this body of law as it so chooses but in practice there are significant constraints.  These include the fact that major areas of policy are governed by it, the potential impact on the UK’s trading and other relationships with the EU, the consequences for individuals and businesses of dropping such a large body of law and the technical complexity and resourcing issues involved with scrapping or changing of almost 4,000 pieces of law.

REUL covers a wide area of regulation that is included in the EU’s Single Market and related policy areas including employment law, food safety, civil aviation, product safety (including toy safety), consumer rights and the environment.  In many cases UK policy is entirely set within a framework of REUL.  Two sectors particularly dependent on REUL are outlined in the Annex to this paper.

The future of REUL has been brought to the centre of political attention by the Truss Government’s Retained European Union Law (Revocation and Reform) Bill, which is currently being considered by Parliament.  This paper explains the background to this Bill, its detailed provisions and the considerable implications of what is a radical proposal.

 

Background

The Government’s Bill...

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