Geoffrey Caesar, Solicitor

The Retained EU Law (Revocation and Reform) Act 2023 (the REUL Act) is a landmark piece of legislation that aims to complete the process of leaving the European Union and restore the sovereignty of Parliament. It revokes reforms and replaces hundreds of pieces of retained EU law (REUL) carried over from the EU legal order after Brexit.

In this blog post, I will explain the main features of the REUL Act, its impact on various sectors and areas of law, and the timeline for its implementation.

What is retained EU law?

REUL is a domestic law created by the European Union (Withdrawal) Act 2018 (the EUWA). It was designed to avoid significant gaps in the statute book, which would otherwise have emerged when the UK left the EU and EU law ceased to apply in the UK.

As well as converting EU law into a new form of domestic law, the EUWA also carried over special features associated with EU law so that they formed part of REUL and could be relied on in UK courts. These included:

• The supremacy of REUL over other types of conflicting domestic law.
• The application of EU general principles to inform how REUL should be interpreted and applied.
• The concept of directly effective retained EU rights.

However, REUL also posed several challenges for the UK legal system, such as:

• Creating legal uncertainty and complexity due to its hybrid nature and lack of clear definition.
• Limiting the ability of Parliament and devolved legislatures to amend or repeal REUL without breaching international obligations under the Withdrawal Agreement and the Trade and Cooperation Agreement.
• Preserving aspects of EU law that were no longer relevant, appropriate or beneficial for the UK after Brexit.

What does the REUL Act do?

The REUL Act provides for the sunsetting, assimilation, modification, and interpretation of REUL in the UK and the powers and procedures for its modification. It also covers the sunsetting, assimilation, modification and interpretation of retained EU rights, powers, liabilities and other retained EU laws. The main provisions of the REUL Act are:

• Sunsetting of REUL: The REUL Act revoked almost 600 pieces of subordinate legislation and retained direct EU legislation at the end of 2023 unless they were saved or preserved by regulations made under the Act. The list of legislation to be revoked is set out in Schedule 1 of the Act. The Act also provides the power to revoke or replace other pieces of REUL by regulations.
• Assimilation of REUL: The REUL Act abolished the supremacy of EU law and the general principles of EU law as sources of domestic law. It also created a new category of domestic law called “assimilated law”, which includes any remaining REUL that is not revoked or replaced by regulations. Assimilated law will be subject to standard rules of interpretation and effect without reference to EU law or CJEU case law.
• Modification of REUL: The REUL Act confers various powers on ministers to modify REUL by regulations, such as:
  • the power to restate retained EU law or assimilated law in clearer or simpler language;
  • the power to restate assimilated law or reproduce sunsetted retained EU rights, powers and liabilities;
  • the power to update retained EU law or assimilated law to reflect changes in domestic or international law; and
  • the power to remove or reduce burdens imposed by retained EU law or assimilated law.
• Interpretation and effect of REUL: The REUL Act clarifies courts’ role in REUL and assimilated law. It provides that courts may depart from CJEU case law when interpreting or applying REUL or assimilated law, subject to certain factors and procedures. It also provides that courts may declare that any provision of REUL or assimilated law is incompatible with any fundamental right or principle recognised by domestic or international law and may make an order to remedy such incompatibility.
• Retained EU law dashboard and report: The REUL Act requires the Secretary of State to maintain a public online database (the “retained EU law dashboard“) that provides information on the status and content of all REUL and assimilated law pieces. It also requires the Secretary of State to publish an annual report on the progress in revoking, reforming and replacing REUL and assimilated law.

What are the implications of the REUL Act?

The REUL Act has significant implications for various sectors and areas of law that are affected by REUL, such as:

• Environment: The REUL Act revokes several pieces of environmental legislation derived from EU law, such as the Waste Framework Directive, the Water Framework Directive and the Habitats Directive. It also enables the modification of other pieces of environmental legislation, such as the Environmental Protection Act 1990 and the Environment Act 2021. The Government has stated that it will replace the revoked legislation with new domestic legislation that reflects the UK’s environmental ambitions and commitments.
• Trade: The REUL Act revokes some pieces of trade-related legislation derived from EU law, such as the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 and the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019. It will also enable the modification of other pieces of trade-related legislation, such as the Subsidy Control Act 2022 and the Trade Act 2021. The Government has stated that it will ensure that the UK’s trade policy is consistent with its international obligations and supports its economic recovery and growth.
• Immigration: The REUL Act will revoke some pieces of immigration-related legislation derived from EU law, such as the Immigration (European Economic Area) Regulations 2016 and the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. It will also enable the modification of other pieces of immigration-related legislation, such as the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 and the Nationality and Borders Act 2022. The Government has stated that it will implement a new points-based immigration system that is fair, firm and skills-based.

When will the REUL Act come into force?

The REUL Act received Royal Assent on 29 November 2023. Most of its provisions came into force on 31 December 2023, the end of the transition period for REUL under the Withdrawal Agreement and the Trade and Cooperation Agreement. Some provisions will come into force on different dates, as section 22 of the Act specified. For example:

• Section 17 (retained EU law dashboard and report) came into force on the day after Royal Assent.
• Section 18 (abolition of business impact target) came into force on 1 January 2024.
• Section 19 (consequential provision) will come into force on 31 March 2024.

Conclusion

The REUL Act is a complex and comprehensive legislation transforming the UK’s legal landscape after Brexit. It revokes and reforms and will lead to the replacement of hundreds of pieces of retained EU law inherited from the EU legal order. It will also restore the sovereignty of Parliament and devolved legislatures to amend or repeal domestic law without being constrained by EU law or CJEU case law.

The REUL Act will also create a new category of domestic law called “assimilated law” that will be subject to standard rules of interpretation and effect. The REUL Act will have significant implications for various sectors and areas of law affected by REUL, such as environment, trade and immigration. The REUL Act will come into force on different dates, depending on the provision, but most came into force on 31 December 2023.

If you need any legal advice on the REUL Act or any legislation it affects, or if you would like a legal report on all legislation affecting your industry, please contact me using the enquiry form on gcaesar.com.