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Special Briefing – The Brexit Bonfire: The Retained EU Law (Revocation and Reform) Bill

Briefings, News | Wed 19th Oct, 2022

It is perhaps unsurprising that in the light of all the recent political excitement the Retained EU Law (Revocation and Reform) Bill has not received sustained publicity. But for cross border and travel lawyers the implications of the Bill’s provisions are as significant as Brexit itself, and perhaps more so, since if passed in its current form the Bill would remove at a stroke almost all of the legislation underpinning our field of work. In this Special Briefing Tom Yarrow considers the Bill’s implications for practitioners and places the behemoth within its political context.

The Brexit Bonfire: The Retained EU Law (Revocation and Reform) Bill

Not long since, my wife and I were moving house. It was a time to reflect on the surfeit of artifacts acquired during our previous tenancy and an opportunity to sift what was coming with us from what would be somersaulting into the skip. Like a paragon marital team, we turned to the task with diametrically opposing approaches: I wanted to adopt a protestant assurance strategy – save unless proscribed; she wanted an Old Testament orthodoxy – destroy unless marked for salvation. We muddled a compromise, and it is now only seldom I am left thinking about that salad spoon, the memory of whose partner fork is confined to the back cupboards of my mind (and now this corner of the internet).

What has the above opportunity for catharsis got to do with anything? Well, what I’ve recently learned, if I didn’t know already, is that my wife should not be partnered with Jacob Rees-Mogg on any delivery strategy. Their ruthless zero-up philosophies would combine to perfect an iconoclasm more puritanically distilled than Savonarola’s bonfire. I’m referring of course to the Retained EU Law (Revocation and Reform) Bill, prenatally known as the Brexit Freedoms Bill, which on the continuum of approaches to take to the half-century infiltration of EU law into the UK Statute Book can confidently be labelled ‘revo max’.

One doesn’t have to read too far to uncover what literary critics might call the ‘mood’ of the piece. The very first word is ‘sunsets’, which has a programmatic funereal effect– the day thou gavest (EU) law is ending – with a subtle nod to the fall of empire. Clause 1 tells anyone who has ever looked at the inner-sausage of law-making, however, that this is less likely to be a crimson-gold crepuscular slip below the horizon, than a precipitous plunging into pitch of Phaethon’s mad-chariot:

  1. The following are revoked at the end of 2023—

(a)   EU-derived subordinate legislation;

(b)   retained direct EU legislation.

This means that in the space of around a year, a full revocation will apply not only to all EU Regulations, which weren’t (because they didn’t need to be) implemented by any enactment, but also all EU Directives implemented in the UK by way of secondary legislation – i.e. domestic law which has already gone through Parliament – unless expressly saved by Ministers. This is a lot of work. To adopt a zeitgeisty metaphor – it is a big pie. The Bill recognises as much and provides for the possibility of extension of the deadline, for up to two and a half more years to 23rd June 2026 – a no doubt deliberate choice of date as the decenary of the Brexit referendum; a not-so-subtle ritualistic bonging on the gong.

Still, it took thousands of person-hours over three years correcting amendments to retained EU law under the EU (Withdrawal) Act 2018 before the end of transition period, and it is hard to see how the present task can be achieved without significant growth in Whitehall, which for the present Government sets the faith somewhat against the faith.

Even if saved by Ministers making Regulations (which is the process envisaged), that which is ‘retained’ will now be known as ‘assimilated’ – some post-divorce photoshopping – and the general principles, rules and procedures of EU law will no longer apply to it. Perhaps most importantly, and most unsurprisingly, there is the removal of the core interpretative principle of sovereignty (previously kept by the EU (Withdrawal) Act): that is, assimilated law will no longer trump domestic law where there is incompatibility. Not only that, but it will expressly be subordinate to domestic law, meaning the primacy of chronology (a later law trumps an earlier one) will not apply. This will apply retrospectively. While politically one might understand the driving force, it is hard to escape the undertunnelling of legal certainty. To take a hypothetical, a business making a decision in 2015, perceiving a possible clash between pure-domestic and applicable EU law, will have chosen to act on the assumption that the domestic legislation would be interpreted to conform with the European regime. That decision may now be in trouble; if the Bill is passed in its current form, the relevant domestic law will have primacy not only from 2023 onwards but also as at the date the business decision was made in 2015.

The Bill also gives UK courts greater freedom to develop domestic case law on assimilated law, somewhat more independent of the zone of influence of the Court of Justice of the European Union, although perhaps not going so far in this area as one might have expected. The Bill will not change the binding nature of CJEU judgments on lower courts made on or before the end of the transition period, but lower courts will be given the power to refer questions on assimilated law to the Court of Appeal and Supreme Court, expressly inviting the higher courts to exercise the power they already had (under the earlier Withdrawal Act) to depart from EU jurisprudence. The Law Officers – in England and Wales, the Attorney General – will have the power to intervene in cases and make such references. The higher appeal courts in making departure decisions must have regard to changes of circumstances since the EU case was determined and review the extent to which the case restricts ‘the proper development of domestic law’. These seem slightly odd tests because if the substantive assimilated law is not changed when retained/assimilated then it is hard to see how a previous case would restrict development of domestic law; while if it is changed then the change in circumstances test will be somewhat otiose because the changes will trump the old law in the new sovereignty hierarchy in any event.

The other vagary, which does not seem to be factored into the Bill, is that Article 4 of the Brexit Withdrawal Agreement provides that where EU law applies to any provisions of that Treaty, then it shall be implemented in the UK in the old-fashioned way – e.g. it has primacy, CJEU decisions are binding, incompatible domestic provisions have to be disapplied etc.. It is a now a few years since the Treaty but notwithstanding that the transition period has come to an end there remains a long tail of winding down provisions which continue to bite and some of which will continue to require application of EU law qua EU law in the UK for years and years to come (see for instance the Chapter on citizens rights where some aspects of Union law continue for the lifetime of those born before the end of the transition period; and the Chapter on financial settlement where technically speaking Union law continues to apply forever!). And of course, the elephant in the room is the Northern Ireland Protocol where a huge volume of EU law also continues to apply indefinitely. To take an example which many readers will be familiar with, Article 67 of the Withdrawal Agreement provides that the Brussels Regulation will apply in the UK to legal proceedings instituted before the end of 2020. It is likely that many cases will still be running by the beginning of 2024 and not beyond the realms of possibility that some such cases will still be running in summer 2026 – certainly for enforcement purposes. In those circumstances, Article 4 of the Withdrawal Agreement (as implemented by virtue of the EU (Withdrawal Agreement) Act 2019) will mean that notwithstanding the instant Bill, the Brussels Regulation will still continue to be applied in the UK in the ‘old way’ to these cases, no matter the sunset.

In this respect, there is no attempt in this Bill to break from the UK’s international obligations committed to in the Withdrawal Agreement. Nevertheless, the Bill will have an uncertain effect on the Trade and Cooperation Agreement. Readers may remember in the Brexit debate the various positions adopted on level playing field provisions and regulatory divergence. Let’s say as a hypothetical that the UK chooses to keep the GDPR and regulations are made under the future Act to assimilate the GDPR into the domestic statute book. But let’s say that the Minister decides not to make any saving provisions of EU interpretative principles to the assimilated GDPR. That means at this future point in time the EU and the UK would have the same substantive law of data protection (the words and letters are the same), but the interpretative principles would be different. Would the EU be comfortable in those circumstances maintaining an adequacy decision to continue cross-border data flows, knowing that the same law might be interpreted differently? The answer is probably (at least initially) ‘yes’ because one of the key (and successful) aims of the UK in negotiating the TCA was to avoid tying itself to Union law (in the way it had in the Withdrawal Agreement). But the UK’s initial retention of sovereignty of EU law and the general interpretative principles certainly provided something of a comfort blanket on the EU side, concerned about a race to the bottom on regulatory standards, which will now be taken away. As a political message, the Bill with what I have called its ‘revo max’ approach pushes the dial of presumption towards divergence.

Greater divergence likely leads to trade restrictions, and as we know the present Government’s focus is growth, growth and more growth. It’s hard to reconcile a Bill which has the potential to operate in this way with that strategy (except to the extent I’ve already indicated that it will require the hiring of a number more lawyers in Government). It’s likely the House of Lords with all its distinguished jurists will have plenty to say, and it would not be surprising to see the final form of this Bill heavily amended before its passage through both Houses is complete. It is certainly a space for parliamentary enthusiasts to watch. Indeed, perhaps the recent changes in the front benches of Government will create a partnership not dissimilar to my marriage, with pulling from opposite shores causing the Brexit barge to slide seamlessly along the compromise canal, with changes to this Bill being brought forward by the Government itself in the Commons. If my wife is Jacob Rees-Mogg in the simile, then I guess that would make me Jeremy Hunt. I’m not sure how I feel about that.

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

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