31 March 2023

CER's Spisak: Will the Retained EU Law Bill undermine Sunak's Windsor deal?

After nearly three years of passionate disagreements over the Northern Ireland Protocol – part of the Withdrawal Agreement that took Britain out of the EU – the UK government and the European Union have finally agreed on a way forward. The Windsor Framework, a deal that amends parts of the controversial protocol, promises to eliminate many of the practical difficulties that businesses and individuals in Northern Ireland have experienced since Brexit. But the Retained EU Law (REUL) bill, an extraordinary piece of legislation currently going through Parliament, could undermine this carefully negotiated deal.

The REUL bill, the brainchild of Jacob Rees-Mogg, a former Brexit opportunities minister, would eliminate a special category of law – known as ‘retained EU law’ – which stems from the EU but which Theresa May’s government decided to preserve to ensure legal stability. The proposed bill would require the government to remove all these laws before the end of 2023, unless ministers decided to replace, amend or update them. This means reviewing around 4,000 pieces of legislation – although not even ministers seem to know the true number – ranging from the Working Time Directive to rules governing chemical usage and standards for the environment, in less than a year.

Some elements of retained EU law have already changed. Post-Brexit immigration laws have repealed provisions relating to free movement of people, and EU state aid rules have been removed from domestic law. But government ministers argue that the powers they used to make those changes under the 2018 EU Withdrawal Act have now expired. That is why they are trying to pass a new law that allows them to remove all retained laws, except the bits they wish to salvage. What laws they save, and why they do so, is at their own discretion, and not that of Parliament.

Some of the bill’s elements are more problematic than others. While the bill still gives ministers the choice of keeping EU laws or scrapping them altogether, it is more absolutist on three other salient matters. The first is that the legislation would abolish the principle of ‘supremacy’ of retained EU law, under which retained law takes precedence in instances where retained EU law and domestic law conflict. Second, the REUL bill would also effectively curtail a host of ‘directly effective’ rights for individuals and businesses – such as the right to equal pay – which originated from EU treaties but became part of domestic law after Brexit; the bill would disapply those rights after the end of 2023. Finally, the proposed bill would give British courts more freedom to depart from relevant rulings of the European Court of Justice (ECJ) in cases where retained EU law still applies in the UK.

Enter the Windsor Framework. Under the new deal struck between UK premier Rishi Sunak and European Commission president Ursula von der Leyen, goods moving into Northern Ireland from Great Britain and staying in the region would – travelling through a ‘green lane’ – be exempted from most customs checks and regulatory requirements. For some products such as medicines, the agreement introduces a dual regulatory system, whereby authorisations from both the UK and the EU will be valid in Northern Ireland. 

While this arrangement removes most of the practical difficulties in Northern Ireland, not everything will change. Northern Irish businesses will continue to apply EU production standards for goods and a body of EU law will still feature within the amended protocol – albeit subject to a new veto that can be exercised by Stormont, the Northern Ireland Assembly, in certain situations. The ECJ will still have jurisdiction over EU rules applying in Northern Ireland – a position which Brussels successfully defended throughout the negotiations. And UK courts will still be able to make preliminary references to the ECJ when hearing disputes relating to EU laws applying in Northern Ireland.

The problem for UK prime minister is that, as it stands, the REUL bill is incompatible with the Windsor Framework in at least three ways....

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