The constitutional importance of retained EU law and its impact on people’s daily lives cannot be overstated. A novel and unique concept in our domestic law, it was created by the European Union (Withdrawal) Act 2018 as a stopgap to avoid holes in the statute book once EU law ceased to apply to the UK. Retained EU law often deals with day-to-day matters such as employment rights, food and farming, consumer protection, health and safety and data protection. The relationship between retained EU law and the devolution settlements also raises complex constitutional and legal issues.
We consider that retained EU law lacks the democratic legitimacy of UK statute. It was originally adopted under EU processes. Often this involved qualified majority voting in the Council of Ministers with limited transparency. The UK had a seat at the table but could rarely block unwelcome EU laws.
Against this backdrop, the Government has embarked on a review of retained EU Law and a Brexit Freedoms Bill is anticipated “by the summer of this year”. The Bill is expected to include powers to change retained EU law by secondary legislation, but it is unclear what else it will do.
Our primary concern is that the Bill should remove the principle of supremacy as it applies to retained EU law. It should provide that retained EU law cannot trump any incompatible UK statute. Supremacy is incongruous in the post-exit domestic legal framework and undermines certainty by effectively creating a second statute book.
We support the use of secondary legislation to change the substance of retained EU law, given pressures on Parliamentary time. Wide amending powers should be carefully drawn and clearly conditioned. The Bill should include a ‘sunset’ provision with an ambitious timeframe after which all retained EU law is repealed. Thought should be given to replacement legislation needed to plug potential gaps in the statute book. A mid-point review in the Bill, coupled with clear prioritisation, could help keep tabs on progress.
The Bill may also make new provision for the interpretation of retained EU law by the courts. Changes should include revisiting the approach to retained general principles and abandoning the purposive approach of the EU Court of Justice.
It is vital that the public and businesses can see how retained EU law applies to them, including any changes. The recent publication of the Government’s interactive dashboard of retained EU law is welcome, though we question whether it fully covers all categories of retained EU law and should feature consolidated texts.
The Government’s task of reviewing and changing this body of law is immense. It will require effective and well-coordinated working across Government. In our view, the task will be better achieved if Government consults: