Under the European Union (Withdrawal) Act 2018 (the 2018 Act), most UK laws in force on or before 31 December 2021 that were based on EU law were preserved. This included all of our domestic laws implementing EU legislation – some 4,500 UK-enacted regulations, 1,300 EU regulations and decisions, and 120 implementing statutory instruments – together described as ’Retained EU Law’. These laws span 300 different policy areas and 21 economic sectors.

Decisions made by the Court of Justice at the European Union prior to 31 December 2021 were similarly preserved. Only the Court of Appeal and the Supreme Court can depart from EU case law if they consider it ‘right to do so’. 

The Retained EU Law (Revocation and Reform) Bill, if it successfully makes its way through Parliament, initially proposed to dispose of ’sunset’ – all EU-derived subordinate legislation, retained direct EU legislation, and retained EU rights, as of 31 December 2023. This would happen automatically under the Bill unless individual laws were restated; revoked and replaced; specifically excluded from the Bill; or the deadline for their sunset expressly postponed. 

At the time of writing, not a day seems to pass without a change in the position of the Bill. Currently, under a proposed amendment to the Bill, the proposed sunset provisions are being shelved, and replaced with a targeted list of laws that the Government is committed to repealing by the end of this calendar year, with any laws not on that list remaining in force – for now at least. But the position remains unsettled (with various additional amendments proposed in response, including a recommended deferral from 2023 to 2028, and some other proposed safeguards before a law is sunsetted) and we can expect more changes over the coming weeks and months. 

What’s on the list for repeal on 31 December?

Careful scrutiny will need to be given to the list of subordinate legislation and retained direct EU law that it is proposed to be repealed, to identify the impact of the removal of these laws. But an array of EU Commission Regulations and Council Decisions are on the list, with a focus on agricultural, fishing and food standards and environmental protection – ranging from the establishment of Euratom (the European High-Level Group on Nuclear Safety and Waste Management) to the recovery plan for bluefin tuna recommended by the International Commission for the Conservation of Atlantic Tunas. 

Some that appear of immediate concern to local authorities include:

• the Flood Risk Regulations 2009 – which require the preparation of flood risk management plans by the Environment Agency and lead local flood authorities;
• elements of the environmental permitting regime; and
• various pieces of legislation relating to energy efficiency. 

The impact of the repeal of these and other laws will be wide-ranging, and it is not clear what thought has been given to the interconnectivity of different pieces of legislation, and the impact on commitments that the UK Government may have previously made to European and international standards and initiatives.

What is the wider impact of the Bill?

Whether or not these proposed amendments end up in the Bill when it is enacted, and regardless of the specific pieces of law which are sunsetted, other aspects of the Bill will continue to have an impact. The Bill also proposes the abolition of the supremacy of EU law (the principle that EU law would take primacy over domestic law and that domestic law should be interpreted with that principle in mind), and the general pervasive principles of EU law (including concepts like proportionality, transparency and equal treatment). All directly effective EU rights would also end on that date unless preserved. These are rights within UK law that have not been introduced via domestic legislation but come directly from an EU Treaty.  Tribunals and courts will no longer be able to use EU decisions to assist with the interpretation of domestic legislation.

Even where laws are retained, the Bill requires any retained EU law to be interpreted in line with domestic law, risking fragmentation and re-interpretation of currently established legal principles.

These provisions, though perhaps less dramatic than the repeal of myriad pieces of legislation, are no less impactful. They will trigger a period (perhaps lengthy) of interpretation and reinterpretation of domestic law to reflect these changes, in ways which are unpredictable. This will directly affect any legislation which has its roots in EU law and is based on the general EU principles, including those of transparency, equal treatment and proportionality. But much domestic law also builds upon those principles or works with a view to being consistent with EU law, and will lose the clarity of its interpretation as a result. The impact on wider legislation is uncertain and potentially widespread. 

What’s next?

First, the Government has to get the Bill through Parliament and onto the statute book, navigating its way through various proposed amendments. Second, they will have to face potential EU action if the Bill as enacted means the UK will be in breach of the UK-EU Trade and Cooperation Agreement. For the short term, there is still ongoing uncertainty.