Last week, the Retained EU law (Revocation and Reform) Bill was introduced to Parliament. It was somewhat lost in the news around the Queen’s funeral and the Mini-Budget, but is incredibly important. At the moment, retained EU law covers most areas of UK law that were previously derived from, or influenced by, EU legislation. These include environmental regulation, data protection, employment law, intellectual property, financial services and competition law.
The Bill allows for the scrapping or replacing of retained EU law by means of regulations made by government ministers. This is a much faster process than passing an Act of Parliament, involves less parliamentary scrutiny in transferring considerable powers from the Legislature to the Executive, and there is no requirement to consult.
Crucially, the Bill includes a “sunset clause” meaning that, at the end of 2023, what’s left of some retained EU law will simply disappear (although this can be extended to June 2026 if the Government needs to extend the deadline in relation to specific laws). Ministers or the devolved administrations can consciously save regulations if they want to (which could lead to inconsistencies between the home nations, subject to the UK Internal Market Act). The explanatory notes to the Bill says that there are around 2,400 regulations. That’s a lot of law to consider in little more than a year!
My colleagues have written about this already in relation to employment law, but it is relevant for commercial law too – there is, for example, a whole raft of consumer protection and product safety regulation which could potentially disappear overnight.
There are exceptions to this – EU derived laws set out in Acts of Parliament (such as the Equality Act 2010 or the Consumer Rights Act 2015) will remain. But secondary legislation and changes to Acts of Parliament made by secondary legislation will come under the scope of the Bill.
So what could be affected? Key examples for both B2C and B2B businesses include:
- Consumer Protection from Unfair Trading Regulations 2008
- Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
- Business Protection from Misleading Marketing 2008
- Weights and Measures (Packaged Goods) Regulations 2006
- Commercial Agents (Council Directive) Regulations 1993
There are other regulations relating to nutrition and health claims, chemicals regulations, health and safety regulation, to name but a few areas. Environmental bodies have already called for a rethink from the Government due to concerns over losing protections for nature and wildlife.
It is worth noting that financial services legislation is excluded from the sunsetting rules as they are covered in other legislation, and they do not apply in Northern Ireland.
There are also provisions to make it easier for UK courts to depart from EU case law, although it is worth noting that UK judges might find similar principles in common law and this may not have too much of an impact.
It seems inconceivable that all these laws would just fall away and leave a legal vacuum, or no regulation at all. However, but at the moment, this is what the Bill does unless ministers take action or the deadline is extended. Even though the aim of the Bill is deregulatory, it is also expensive for businesses to prepare for new laws (or the lack of them) and, given the current economic situation, this does not seem like a good time to be changing laws for the sake of it. Finally, it could have a negative impact on the EU Trade and Cooperation Agreement if the level playing field requirements are adversely affected. If it ain’t broke, don’t fix it and all that (or perhaps that should be if it’s already broken, don’t set it on fire…).
It will be interesting (and potentially hair-raising) to see if the Bill becomes law in its current form, and whether the deadlines are extended depending on how long it takes for it to pass through the parliamentary process. Stay tuned with marshmallows at the ready.
The Bill allows for the scrapping or replacing of retained EU law by means of regulations made by government ministers. This is a much faster process than passing an Act of Parliament, involves less parliamentary scrutiny in transferring considerable powers from Legislature to the Executive, and there is no requirement to consult.