Retained EU Law is a category of domestic law created at the end of the transition period following the UK’s departure from the EU and it consists of EU-derived legislation that was preserved in the UK domestic legal framework by the European Union (Withdrawal) Act 2018.

With the new Bill, the Government intends to end the special status of retained EU Law in the UK statute book on 31 December 2023. The Government says that the Bill will enable it, via Parliament, to amend more easily, repeal and replace retained EU Law. The Bill will also include a sunset date by which all remaining retained EU Law will either be repealed or assimilated into UK domestic law. The sunset may be extended for specified pieces of retained EU Law until 2026.

The Government has mapped where EU-derived legislation sits on the UK statute book. It now says that the Bill will enable it to “fully realise the opportunities of Brexit, and to support the unique culture of innovation in the UK”.

To achieve this, the Bill will include the provisions outlined below.

Sunsetting retained EU law

The Bill will sunset the majority of retained EU law so that it expires on 31 December 2023. All retained EU law contained in domestic secondary legislation and retained direct EU legislation will expire on this date, unless otherwise preserved. Any retained EU law that remains in force after the sunset date will be assimilated in the domestic statute book by the removal of the special EU law features previously attached to it. Therefore, the principle of the supremacy of EU law, general principles of EU law, and directly effective EU rights will also end on 31 December 2023.

Before that date, Government departments and the devolved administrations will determine which retained EU law can expire, and which needs to be preserved and incorporated into domestic law. They will also decide if retained EU law needs to be codified as it is preserved in order to preserve policy effects that the Government intends to keep.

The Bill includes an extension mechanism for the sunset of specified pieces of retained EU law until 2026. Should it be required, this will allow departments additional time where necessary to assess whether some retained EU law should be preserved.

Ending of supremacy of retained EU law from UK law by 2023

The Bill will reverse the priority that retained EU legislation currently has over domestic legislation when the two are incompatible. Where it is necessary to preserve the current hierarchy between domestic and EU legislation in specific circumstances, the Bill provides a power to amend the new order of priority to retain particular legislative effects.

Assimilated law

Following the removal of the special features of EU law from retained EU law on 31 December 2023, any retained EU law that is preserved will become “assimilated law” to reflect that EU interpretive features no longer apply.

Facilitating departures from retained EU case law

The Bill will provide domestic courts with greater discretion to depart from retained case law. It will also provide new court procedures for UK and Devolved Law Officers to refer or intervene in cases regarding retained case law.

Modification of Retained EU Legislation

The Bill will downgrade the status of retained direct EU legislation for the purposes of the amendment. The Bill will also modify powers in other statutes to facilitate their use to amend retained direct EU legislation in the same way they can be used on domestic secondary legislation. The Government says that this will “enable retained direct EU legislation to be amended more easily with an appropriate level of scrutiny”.

Powers relating to retained EU law

The Bill will create powers to make secondary legislation so that retained EU law can be amended, repealed and replaced more easily. The Bill also takes powers to specify, after the sunset, the body of law that will continue to apply in place of retained EU law, and how it should be interpreted. Using these powers, the Government says that it will “ensure that only regulation that is fit for purpose and suited for the UK will remain on the statute book”. To read the Government’s press release in full, click here. To access the Bill, click here.