The Retained EU Law (Revocation and Reform) Bill (“the Bill”) is likely to have the reverse effect to what it aims to achieve: economic growth and business certainty (Explanatory Notes to the Bill) through clarification/simplification of UK law post-Brexit. There is lack of clarity, requiring lawyers and business advisers to search through layers of material to establish which “retained laws” are being targeted, the Retained EU Law Dashboard is not easy to navigate and nor does its list of relevant legislative instruments correspond to other official publications such as that of the House of Commons Library Briefing Paper, Legislating for Brexit: Statutory Instruments Implementing EU Law. Moreover, the sunsetting deadlines for the targeted retained laws are likely to force the relevant departments to experience the dilemma of causing laws to expire without consulting the public fully, applying full Parliamentary scrutiny, or restating retained laws with inadequate resources to make such restatements sufficiently effective (Travers Smith: The Retained EU Law Bill: another Brexit cliff edge looms? October 2022). The resulting uncertainty that businesses will endure from this Bill and the regulatory gaps, at least in the short term, leave one wondering as to the value of the rush to legislate in this way. This blog focuses on the company law impacts as an example of the complexities and problems likely to arise, not just in the company law arena but in other important areas the development of which has been influenced significantly by European legislation, such as environment law. (more…)
On 29 January the House of Lords Constitution Committee delivered a withering assessment of the EU (Withdrawal) Bill, describing it as ‘fundamentally flawed from a constitutional perspective in multiple ways’. Alongside trenchant criticisms of the delegated powers in the Bill, and the effects for the devolution settlement, the Committee’s Report focuses on the definition and status of ‘retained EU law’.
The aim of this short post is to explore some of the implications of the Committee’s approach to this vexed question. If, as the Committee recommends, ‘retained EU law’ is defined narrowly, it will have the virtue of restricting the scope of the Henry VIII Henpowers in clause 7, which only apply to operational problems and deficiencies in relation to ‘retained EU law’. But a narrow definition gives rise to problems elsewhere. ‘Retained EU law’ is also the definition used for the purpose of the continuing application of existing CJEU case law and retained general principles of EU law under clause 6. Questions as to the validity, meaning and effect of pre-Brexit UK law which is not ‘retained EU law’ are therefore excluded from these interpretative provisions. In the Bill as worded, it is not clear if this difficulty is resolved by the operation of the principle of supremacy of EU law referred to in clause 5, the meaning and effect of which is very opaque. The Committee recommends that the principle of the supremacy of EU law be abandoned altogether; but if its approach were to be followed, there would be no EU principles which would apply to any law currently in the field of EU law which is not ‘retained EU law’. The implications are assessed by reference to the Equality Act 2010 (EqA). (more…)
The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).
However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. (more…)