Getting to grips with Retained EU Law
I will freely admit that I have shied away from getting into the whole question of Retained EU Law, primarily because it’s much more about law in the UK than it is about EU law per se. I know enough to know that I don’t know much.
However, the question is one that cannot be ignored.
Firstly, the extent of Retained EU Law is such that how it is dealt with will have significant consequences for British legal systems, UK businesses and politics. The Retained EU Law (Revocation & Reform) Bill gives huge powers to the government to make changes to rules within effective Parliamentary oversight, for example.
Secondly, the headlong rush to sunset rules by the end of 2023 contains significant implications for the UK’s compliance with its obligations under the Withdrawal Agreement and (especially) the Trade & Cooperation Agreement, the latter with its Level Playing Field requirements. Given that the UK government is still unclear as to quite what falls into the Retained EU Law classification, even their intentions are to comply, the danger of accidental divergence is evident.
And finally, the entire shift on the matter speaks to the continuing uncertainty about what relationship with the EU the UK might want.
Almost from the off after the referendum, there was a recognition that something would have to be done about all of the internalised and semi-internalised legislation (and practice) that came from the EU. Not just the regulations and the directives, but also the principles of supremacy and direct effect and the extensive case law of the CJEU.
Given the unclear boundaries of all of this, the only viable option at the time of the Withdrawal Agreement negotiations was the one taken by the EU (Withdrawal Agreement) Act 2018, which just rolled over the membership-era system created by the European Communities Act 1972 and let the government take its time over resolving matters.
As I’ve been showing in my REUL Tracker (last discussion here and data files here), there has been some work to review and adapt to life after membership, but at a rather slow pace. Perhaps as a mark of that slow pace, the fancy visualisation tool first published in September last year has just undergone a big reworking, making it now very hard to keep track of what’s happened [one for next week I think].
However, the EU(WA) Act approach clearly caused issues for some in government, hence the flip over to the new Bill.
This drops methodically working through the pile to saying that anything not explicitly addressed by the end of 2023 will be sunsetted (sunsat?), even as any general principle of EU law is also removed from the practice of law in the UK.
The issues with this approach are both multiple and major, as set out in the graphic below. Even if liberal use of the ‘exceptional’ extension to 23 June 2026 (not an insignificant date) would still likely result in a large percentage of Retained EU Law being dropped without the level of scrutiny one might hope for (assuming that the civil servants and MPs involved might also have other things that need their attention).
The Bill’s approach speaks to a desire to divest the UK of any vestige of having been an EU member, regardless of whether any part of it might have intrinsic value: a measure’s EU origin is enough to make the presumption that it must be removed.
This is of course a worldview that resonates with the notion of ‘taking back control’ and of British otherness; only we can know what is right for us, only we can make decisions for us. As political sells go, it’s not the hardest banner to run on, at least in a campaigning mode.
But politics is also about governing: our shiny ideas quickly tarnish in the glare of day as we start to use them.
And so it is here. The Bill might make good headlines, but it doesn’t obviously make things better for citizens, for traders or for relations with the European Union that (annoyingly) continues to sit on the UK’s doorstep. As I touched upon the other week, we don’t get to make unilateral decisions about our relationships, however much we’d like that.
At a moment when the government seems (maybe, perhaps) to be working towards some kind of deal with the EU on Northern Ireland, it would be ironic if it simultaneously opened up a new point of tension over an issue that only it seems to think is an issue.