The Dekagram: 11th September 2023

Just as the team settled down to enjoy the unusual rendering of the national anthems at the rugby World Cup this weekend, we were distracted by the publication by the Department for Business and Trade of its guidance on the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023. We read these things so that you don’t have to – the guidance is summarized below.

The BaT Guidance on REL(RaR)AR 2023

The Regulations are noteworthy because they mark the first step in the process envisaged by the Retained EU Law (Revocation and Reform) Act 2023 (universally known as ‘REULA’). The Act allows for the preservation by way of statutory instrument of some retained EU law, and (conversely) for the revocation of other EU derived law. Schedule 1 to the Act provides a list of 587 pieces of retained EU law which will be repealed on 31^st December 2023, either because it is regarded as being obsolete post-Brexit or because it is now said to be inapposite to the needs of the UK. But since the Act was passed, further analysis has been conducted, it has been identified that not all of the instruments listed for revocation in Schedule 1 are obsolete, and the Regulations therefore preserve them (in some cases, only in Northern Ireland). On the other hand, the analysis identified 93 further obsolete instruments which could safely be revoked, and accordingly, the Regulations contain additions to Schedule 1.

This will be the first time the government has used the powers conferred on it by REULA to disapply the sunset (REULA s.1(4)), or to revoke REULA itself (s.14(1)). The former powers were intended for only occasional use if absolutely necessary. However, following further analysis the government has identified that four pieces of legislation on the Act’s revocation schedule are not obsolete and are in fact required to maintain the current policy position in the UK. In addition, the Northern Ireland Civil Service has identified three pieces of legislation which must be preserved for Northern Ireland only. All three pieces relate to information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries, which must be preserved only for Northern Ireland because their revocation represents a policy change which would require agreement by Ministers in the Northern Ireland Executive, which cannot be granted in the ongoing absence of that Executive.

Comment

These new regulations will, it is envisaged, be the first of many, as civil servants identify more and more EU retained legislation for immolation on the post-Brexit bonfire. It is not intended that any of the legislation to be revoked will be controversial, although the law of unintended consequences does seem to operate particularly strongly in this area.

Practitioners will be more concerned about the other provisions in REULA; from 31^st December 2023 the principles of the supremacy of EU derived law and general principles of EU law will cease to operate and domestic law and principles of interpretation will attain primacy (ss.3(1) and 4(1)). It will be interesting to see how the courts interpret these provisions, especially in areas familiar to travel and cross border practitioners in which the Court of Justice of the European Union has been particularly active, such as the application of the Montreal Convention or the Denied Boarding Regulations. Whether some of the more counterintuitive decisions in these areas can survive examination through the English common law lens is perhaps open to debate, although it is difficult to see how an English court could possibly have come to the same conclusions as the CJEU in, for example, Sturgeon v Condor, Case C-402/07 (a three hour delay is a cancellation)or JR v Austrian Airlines, Case C-589/20 (falling for an unidentified reason is an accident within the meaning of the Montreal Convention).

It is difficult to overstate the potential importance of this shift – will we see the dawn of a golden age of English and Welsh black letter common law as a result of REULA? This author suspects not; the purposive approach to the law has been in evidence since well before the UK joined the EU just 50 short years ago (it will be recalled that Lord Denning adorned the Bench from 1944), and it surely stretches credulity to suggest that judges will suddenly begin to interpret consumer protective legislation in strict accordance with its wording. Nevertheless, 2024 is bound to bring with it a number of interesting challenges to ingrained judicial thinking, and history suggests that travel and cross border practitioners are likely to be at the forefront of these test cases. We must all be ready to think about established legislation in a new way.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.