Future of retained EU law in doubt beyond 2023

Under the Bill, currently at committee stage, all retained EU law would be repealed on 31 December 2023, unless incorporated into UK domestic law.

At stake are thousands of retained EU laws (direct EU legislation and UK secondary legislation) affecting employment, transport, data protection, agriculture, environmental and consumer protections, and more—retained under former prime minister Theresa May’s EU (Withdrawal) Act 2018 following the UK’s departure from the EU. The retained laws include provisions on, for example, hazardous substances, building regulations, annual leave, equal pay, pregnancy rights, rest breaks and parental leave.

The Bill provides that the sunset date, currently the end of 2023, can be delayed until 23 June 2026 for specified pieces of legislation.

Law Society president Lubna Shuja (pictured) said the Bill ‘raises uncomfortable questions for parliamentary sovereignty, legal certainty, and the rule of law.

‘If the Bill passes in its present form, businesses cannot have any certainty about the legal and regulatory landscape beyond 2023. This would have a chilling effect on investment decisions, damage the UK’s standing as an international business hub and the global reputation of English law for certainty and predictability.

‘The Law Society therefore calls on the government to remove the arbitrary and unrealistic 2023 deadline in the sunset clause, to allow for a measured and thorough review of affected laws.’

The Bill also extends the Supreme Court’s power to depart from retained EU case law to other UK courts.

Shuja said this could result in different UK courts coming to ‘different, conflicting decisions’, and highlighted that ‘the legal test the Supreme Court uses to depart from its own rulings is necessarily high, uncodified and flexible. It reinforces legal clarity and certainty’.

According to Shoosmiths partner Charles Arrand and associate Hannah Howard, the Bill has the potential ‘to affect most, if not all, businesses in the UK’.

Michael Zander KC has written in NLJ this week on the Retained EU Law (Revocation and Reform) Bill—read his article here.