On 28/09/22, Monckton Chambers hosted a discussion on the Retained EU Law (Revocation and Reform Bill). Professor Catherine Barnard, Philip Moser KC, George Peretz KC and Jack Williams will discuss the content and implications of the Bill.
The Bill’s provisions make significant and substantial amendments to the legislative scheme introduced to implement Brexit. Once enacted, it will affect every practice area. The Bill’s proposed changes include, inter alia: the introduction of a sunset provision for retained EU law; the amendment of rules concerning the interpretation and effect of retained EU law (including abolishing the supremacy of EU law and general principles); the introduction of new domestic reference procedures to enable the courts to depart from retained case law; the granting of extensive powers to ministers to restate, revoke, update and replace retained EU law; and the creation of a new category of law, ‘assimilated law’.
Catherine, Philip, George and Jack explore the meaning and impact of each of these proposed changes.
The webinar recording is available here:
Short answers to some of the generally-applicable, legal questions raised by the audience are as follows :
What happens to law that was included in an SI made under the 1972 Act that amended primary legislation, i.e. that law is now incorporated into primary legislation but comes from EU derived subordinate legislation?
Primary legislation is unaffected, because of clause 1(3) and the use of “under” in clause 1(5).
Would it be contrary to the spirit and intent of the Act to preserve under 1(2) everything that would otherwise sunset? Would that present a legal impediment?
It would be arguable that any such regulation would be unlawful as frustrating the purpose of the Act similar to cases such as Fire Brigades Union, Laker Airways and Miller I.
Will the sunsetting sunset clause cover EU-derived subordinate legislation which was not made under s2(2) of the ECA but which still implement EU directives (eg the Fixed-Term Employees Regulations)?
Yes, as a result of clause 1(4)(b).
Where legislation partly implements an EU obligation but also does something else which is purely domestic, does the sunset provision apply to the domestic part as well as the EU part? Or is the domestic part “saved” by the words “so far as” in the definition of “EU derived subordinate legislation” in s1(4)?
The latter seems more likely i.e. the EU-derived subordinate legislation is severable and only sunset in part for the reason you give.
Is it right that the Bill switches off the Marleasing effect? So any “assimilated” law left on the statute book after 2023 (e.g. Equality Act) won’t need to be interpreted in accordance with the relevant EU Directives going forward? And how, technically, does the Bill do that?
Yes, this appears to be the combined effect of clauses 3 and 4 (views differ as to whether the Marleasing duty flows from the principle of supremacy, or as a right). The effect could be replicated, of course, under the powers in e.g. clauses 8, 12 and 13.
What precisely would be defined as retained EU case law? For example when a domestic court has only partially relied on a CJEU judgment?
See s6(7) EU(W)A 2018- it appears to include even case law which partially relies on a CJEU Judgment.
If nothing is done about (say) the working time regulations by 31 December 2023, will they be sun-setted or assimilated?
Yes – the effect of clause 1 is that stark if not extended, which is when the cliff edge will be unless shifted to 2026 under clause 2 (assuming it’s enacted).
What is the effect of the Bill on legislation which only partly implements an EU law, but also contains purely domestic provisions? Will the Bill mean that the legislation would disappear entirely under the sunset provisions, unless any part of it was expressly preserved, or will only the EU derived provisions disappear?
The latter seems more likely i.e. the EU-derived subordinate legislation is severable and only sunset in part because of the phrase “so far as” in clause 1(4)
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