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Retained EU Law (Revocation And Reform) Act 2023

Contents

Powers relating to retained EU law

Section 11: Power to restate retained EU law

  1. Section 11 establishes the power to restate provisions of "secondary REUL", (i.e. including the codification of directly effective rights etc. under section 4 of EUWA, retained case law and general principles). Once restated, this legislation will no longer be REUL, and retained general principles, retained case law or the principle of supremacy will not apply. The power does, however, enable the effects of those things to be reproduced. This will enable the same policy outcome to be achieved as the policy outcome produced by the REUL being restated. This power will be capable of making limited amendments to both domestic primary and secondary legislation.
  2. Subsection (1) sets out that a relevant national authority (a UK government or devolved government minister) may, by regulations, restate any "secondary retained EU law", defined by subsection (2) as any retained EU law that is not primary legislation, or any retained EU law that is primary legislation, but only to the extent that it has been amended by subordinate legislation. This means that amendments made to primary legislation by subordinate legislation may be restated under the power in subsection (1).
  3. Section 11 is supplemented by section 13, which establishes further general parameters of what a restatement can do and how (see below).
  4. Subsection (3) states that any provision made by this power will no longer be REUL. Amongst other things, this means that section 6 of EUWA (application of retained case law) will no longer apply.
  5. Subsections (4) and (5) establish that the interpretive effects associated with REUL will cease to have effect for the purposes of interpreting restatement provisions. In particular, the principle of supremacy will cease to have effect, retained general principles will cease to be read into the law, and anything that is REUL by virtue of section 4 (retained directly effective rights) or 6(3) or (6) of EUWA (application of retained case law) will cease to have effect.
  6. Subsection (6) establishes that a relevant authority may, as part of any restatement, reproduce into domestic legislation an effect that is equivalent to that produced by those interpretive effects that have ceased to apply under subsections (4) and (5). However, the power cannot reproduce the principle of supremacy or general principles per se, but only particular effects derived from them (this is set out in section 13 below). This enables relevant authorities to achieve the same policy outcome as the REUL being restated, where considered appropriate.
  7. Subsection (7) establishes that this power expires at the end of 31 December 2023.

Section 12: Power to restate assimilated law or reproduce sunsetted EU rights, powers, liabilities etc

  1. Section 12 operates in a similar way to section 11, and is intended to have the same scope as section 11 (i.e. restate or reproduce the same things). However, this section will operate on assimilated law after 2023, when section 2 to 5 have taken effect.
  2. Section 12 establishes a power to restate provisions of "secondary assimilated law". Once an instrument is restated by the powers in section 12 it will no longer be classed as assimilated law and any residual interpretive effects of section 6 of EUWA (application of retained case law) will be disapplied for the purposes of any restatement.
  3. Other interpretive principles - such as the application of the principle of supremacy, retained general principles and directly effective EU rights under section 4 of EUWA - will have been disapplied under sections 2 to 4 of this Act at the end of 2023. Nonetheless, the power enables the individual "effects" of those things to be reproduced. The purpose of this is to enable the same policy or practical outcome to be achieved as the law would have achieved had such interpretive effects continued to apply. This power will be capable of making limited amendments to both domestic primary and secondary legislation.
  4. Subsection (1) sets out that a relevant national authority (a Minister of the Crown or a devolved authority) may, by regulations, restate any "secondary assimilated law". This will apply to the body of law that is referred to as "assimilated law" after 2023 (see section 5). Subsection (2) sets out the definition of secondary assimilated law. In consequence, the power to restate is limited to restating assimilated law that is not primary legislation, or assimilated law that is primary legislation, but only to the extent that it has been amended by subordinate legislation.
  5. Subsection (3) states that any provision made by this power will no longer be assimilated law. Amongst other things, this ensures that section 6 of EUWA will no longer apply.
  6. Subsections (4) establishes that the application of retained case law by virtue of 6(3) or (6) of EUWA, will not have effect for the purposes of interpreting restatement provisions. Without this provision, any restatement may be interpreted in line with retained case law to the extent set out in section 6 of EUWA (i.e. to the extent that the assimilated law being restated was).
  7. Subsection (5) establishes that a relevant authority may, as part of any restatement, reproduce into domestic legislation an effect that is equivalent to that produced by those interpretive effects that ceased to apply under subsections (4). In other words, the effects of the retained case law may be reproduced. This enables relevant authorities to achieve the same policy outcome produced by the assimilated law that is being restated, where considered appropriate.
  8. Subsection (6) and (7), enables a relevant national authority as part of any restatement, where considered appropriate, to reproduce an effect equivalent to the interpretive effects of supremacy, general principles or anything that was REUL by virtue of section 4 (retained directly effective rights). This applies to those interpretive effects which are disapplied by sections 2 to 4 of this Act at the end of 2023. This is limited only to reproducing their "effects" and not reproducing such principles or rights themselves (see section 13(4) to (6)).
  9. Whereas subsections (6) and (7) enable the reproduction of interpretive effects as part of a "restatement", subsection (8) allows the reproduction of the effects of retained general principles and directly effective rights under section 4 of EUWA (as they would have applied were it not for sections 2 to 4 of this Act) on their own. This reflects the ability in section 11 to codify these aspects of REUL. This enables the effects of retained general principles and directly effective rights to be rewritten back into legislation to which such things were relevant before the end of 2023. That includes reproducing the effects of general principles or section 4 rights etc. into relevant primary legislation. The effects of supremacy may not be capable of being reproduced.
  10. Subsection (9) establishes that this power expires on 23 June 2026.

Section 13: Powers to restate: general

  1. Section 13 establishes the general parameters of what a restatement under sections 11 and 12 can do and how it should be conducted.
  2. Subsection (2) establishes that a restatement can use different words or concepts from those used in the secondary retained EU law that is being restated.
  3. Subsection (3) sets out that the relevant national authority may make changes which it considers appropriate for one or more of the below purposes -
    1. resolving ambiguities;
    2. removing doubts or anomalies; and
    3. facilitating improvement in the clarity or accessibility of the law.
  4. Subsection (4) places limitations on the powers, preventing a broader reinstatement of the principle of supremacy. So far as sections 11 and 12 may reproduce the effects of supremacy as part of a restatement, subsection (4) establishes that provisions made by regulations under sections 11 and 12 may include provisions about the relationship between the restated legislation and any other specified relevant enactment, but it may not, however, specify the relationship between the restated legislation and all enactments. Subsection (9) ensures that this ability to set out the relationship between a relevant enactment and a restatement does not overlap with the power in section 7. Where an authority wishes to set out the relationship between RDEUL and a restatement that is not contained in RDEUL, then the power under section 7 will be available to set out the relationship between the RDEUL and the restatement.
  5. Subsection (5) clarifies that the powers under section 11 or 12 may not be used to codify or reproduce the principle of supremacy of EU law or a retained general principle of EU law.
  6. Subsection (6) establishes that nothing in subsection (5) prevents regulations under section 11 or 12 from codifying or reproducing for a particular enactment an effect that is equivalent to an effect which is produced by virtue of the principle of supremacy of EU law or retained general principles of EU law, or an effect that would be produced were it not for sections 3 to 5 in this Act. Subsection (6) also outlines that this also applies where codifying and reproducing anything which is or was retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018.
  7. Subsection (7) establishes that the provision that can be made by regulations under this section can be made by making modifications to any enactment. Whilst only secondary REUL or secondary assimilated law may be restated under the respective powers in sections 11 and 12, this subsection will allow the restatement to be made in primary legislation, for example. As set out above, that enables the codification or reproduction of case law or general principles to sit alongside related primary legislation, or for the consolidation of any REUL/assimilated law to be placed in primary legislation if appropriate.
  8. Subsection (8) clarifies that the restatements under sections 11 and 12 may maintain a particular policy effect by express provision or otherwise.
  9. Subsection (10) clarifies that references to "retained general principles of EU law" in subsections (5) and (6) have the same meaning as that set out in sections 11 or 12 of this Act.
  10. Subsection (11) clarifies that in section 13 a reference to "restatement" (a) in relation to section 11, has the same meaning as in that section, and (b) in relation to section 12, has the same meaning as in that section but also includes reproduction. Amongst other things this ensures that "restatement" also includes codification.

Section 14: Powers to revoke or replace

  1. Section 14 establishes the powers to revoke or replace secondary retained EU law (or assimilated secondary law after the end of 2023), and the parameters in which this can be conducted. The powers are constrained to revocation or replacement law that a relevant national authority considers does not add to the overall regulatory burden.
  2. Subsections (1) to (3) set out the ways in which a relevant national authority (a Minister of the Crown or devolved authority) may use the powers to revoke or replace secondary retained EU law. "Secondary retained EU law" has the same meaning as that set out in section 11.
  3. Subsection (1) sets out that a relevant national authority may revoke any secondary retained EU law without replacing it with any alternative domestic legislation.
  4. Subsection (2) provides that a relevant national authority may revoke any secondary retained EU law and replace it with a provision that is considered by the relevant national authority to be appropriate and achieves the same or similar objectives.
  5. Subsection (3) states that a relevant national authority may revoke any secondary retained EU law and make an alternative provision that they consider is appropriate.
  6. Subsection (4) states that regulations under subsection (2) or (3) –
    1. may confer a power to make subordinate legislation that corresponds or is similar to a power to make subordinate legislation conferred by secondary retained EU law that is revoked by the regulations (and may not otherwise confer a power to make subordinate legislation);
    2. subject to that, may confer functions (including discretions) on any person;
    3. may create a criminal offence that corresponds or is similar to a criminal offence that was created by the secondary retained EU law that is revoked by the regulations, and may not otherwise create any criminal offence;
    4. may provide for the imposition of monetary penalties in cases that correspond or are similar to cases in which secondary retained EU law revoked by the regulations enables monetary penalties to be imposed, and may not otherwise impose monetary penalties;
    5. may not provide for the charging of fees;
    6. may not –
      1. impose taxation; or
      2. establish a public authority.
  7. Subsection (5) sets out that no provision may be made under this section in relation to a particular subject area unless the relevant national authority considers that the overall effect of the changes made by it under this section, including those changes made previously, do not increase the regulatory burden on that particular subject area. This means that the aggregate regulatory burden cannot be added to.
  8. Subsection (6) sets out that for the purposes of subsection (5), the creation of a voluntary scheme is not to be regarded as increasing the regulatory burden.
  9. Subsection (7) sets out that a provision can be made under this section by making modifications to any secondary retained EU law.
  10. Subsection (8) specifies that any provision made by this power will not be retained EU law. Amongst other things, this means that section 6 of EUWA will no longer apply (i.e. the application of retained EU case law).
  11. Subsection (9) states that no regulations can be made under this power after 23 June 2026.
  12. Subsection (10) sets out a non-exhaustive list of things that would be considered a "burden" for the purposes of an authority’s consideration as to whether the exercise of the powers under this section might add to the overall regulatory burden in any particular subject area. This includes, among other things, any of the following considerations:
    1. a financial cost;
    2. an administrative inconvenience;
    3. an obstacle to trade or innovation;
    4. an obstacle to efficiency, productivity or profitability;
    5. a sanction (criminal or otherwise) which affects the carrying out of any lawful activity.
  13. Subsection (10) also sets out that for the purpose of this section "revoke"-
    1. includes repeal, and
    2. in relation to anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018, means that it is not recognised or available in domestic law and, accordingly, is therefore not to be enforced, allowed or followed.
  14. Subsection (10) further states that references to "secondary retained EU law" in this section should be read after the end of 2023 as references to secondary assimilated law. This means that the revoke or replace powers will be able to operate after 2023 on secondary assimilated law up to 23 June 2026.
  15. Subsection (11) sets out that in subsection (8) the reference to retained EU law is to be read after the end of 2023 as a reference to assimilated law (i.e. so any provisions made after 2023 will not be assimilated law).

Section 15: Power to update

  1. Section 15(1) establishes that a relevant national authority (a Minister of the Crown or devolved authority) may make regulations to modify any secondary REUL or any provision made under sections 11, 12 or 14 of this Act, as considered appropriate, in order to take account of –
    1. changes in technology, or
    2. developments in scientific understanding
  2. Section 16(2) states that the reference to secondary REUL in subsection (1) is to be read as a reference to secondary assimilated law after the end of 2023. This means the power is capable of "updating" assimilated law after 2023.

Section 16: Power to remove or reduce burdens

  1. This section amends Part 1 of the Legislative and Regulatory Reform Act 2006 (LRRA) to allow Legislative Reform Orders (LROs) to be used to amend any retained direct EU legislation (RDEUL).
  2. Subsection (2) inserts a new paragraph into section 1(6) of the LRRA to amend the definition of "legislation" in the LRRA to explicitly include "any retained direct EU legislation". This enables the use of LROs to reform RDEUL.
  3. Subsection (3) inserts a new subsection to section 12 of the LRRA. This subsection amends the LRRA to disapply the procedural requirements in paragraph 4 of Schedule 8 to the European Union (Withdrawal) Act 2018 for existing powers to create subordinate legislation (including LROs) that may operate on RDEUL or REUL by virtue of section 4. This disapplies the requirement for relevant LROs to be subject to the same scrutiny procedure before Parliament as for amending primary legislation.
  4. The relevant LROs would still be required to follow the standard procedure, including consultation, committee reports and would be subject to either the negative, affirmative or super affirmative resolution procedure (with both negative and affirmative subject to scrutiny route being increased) as set out in the LRRA.

Section 17: Retained EU law dashboard and report

  1. This section imposes a duty to report on retained EU law reform.
  2. Subsection (1) places an obligation on the Secretary of State to update the retained EU law dashboard and publish and lay before Parliament a report on the revocation and reform of retained EU law at set intervals of time known as "reporting periods".
  3. Subsections (2) and (3) specify that each report must:
    1. summarise data on the retained EU law dashboard,
    2. set out progress made in revoking and reforming retained EU law during the relevant reporting period, and
    3. detail the Government’s plans for revocation and reform of retained EU law in future reporting periods, including a list of provisions of retained EU law which His Majesty’s Government intends to revoke or reform.
  4. The dashboard must be updated and report laid within 30 days after the end of each reporting period.
  5. Subsections (4) and (5) define each of the reporting periods. The first report would cover the period from Royal Assent to 23 December 2023. Further reports would cover each subsequent period of 6 months. The final report would cover the period of 6 months from 24 December 2025 to 23 June 2026, to align with the expiry of the powers conferred by section 12 (power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities, etc) and section 14 (powers to revoke or replace).
  6. Subsection (6) sets out that, should the Secretary of State fail to meet the requirements in subsection (1), then they must explain why in a written statement which they publish and lay before Parliament.
  7. Subsection (7) defines "retained EU law dashboard" as the database of retained EU law maintained and made publicly available by the Secretary of State. It also defines "revoke" consistently with the definition at section 14.
  8. Subsection (8) clarifies that "reform" of retained EU law, in subsection (2), includes its replacement.
  9. Subsection (9) clarifies that the final report should not include details of the Government’s plans to revoke and reform retained EU law reform in future reporting periods (as there will be no further reporting periods).

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