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Legal Update - The Retained EU Law (Revocation and Reform) Act 2023

View profile for Rebecca Ironmonger
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On 29 June 2023, the Retained EU Law (Revocation and Reform) Act 2023 completed its journey through Parliament and received Royal Assent. The content of the original bill, which was the subject of much controversy, has changed considerably, but still implements a major shift in the UK’s law post-Brexit. Rebecca Ironmonger, from our Regulatory Team, discusses what this new Act might mean for farmers, food businesses and the environment.

The Retained EU Law (Revocation and Reform) Act 2023, in summary, does several things:

  • It collectively revokes a long list of legislation which is either retained EU law or implemented EU law, effective from 1 January 2024
  • It repeals section 4 of the European Union (Withdrawal) Act 2018, effective after end of 2023
  • It abolishes the general principles and supremacy of EU law, effective after 31 December 2023
  • It downgrades some retained EU law so that it can be amended more easily, effective immediately
  • It changes the name of retained EU law to assimilated law

The only true certainty in the Act is the list of legislation being revoked at the end of 2023 under section 1, set out in Schedule 1 of the Act. This list includes mostly obsolete and repetitive legislation where its provisions are covered in other Acts and regulations somewhere else. The original version of section 1, which was controversial, proposed to revoke all retained EU law, so the version passed is an improvement in certainty terms.

However, that is where the certainty ends. Section 2, which repeals section 4 of the European Union (Withdrawal) Act 2018, is much broader and contains no additional explanation. Section 4 of the European Union (Withdrawal) Act 2018 put the vast majority of directly applicable EU directives and rights at the time the UK left the EU onto the statute book. Therefore, section 2 of the Retained EU Law (Revocation and Reform) Act 2023 repeals all of those directly applicable retained EU law directives and rights which by 31 December 2023 have not been restated – essentially selected by the relevant government to be kept, with or without any modification. No explanation or guidance has been provided by the Government yet on exactly what retained EU law they intend to keep and which they do not.

This is certainly not the clearest of language the draftsman could have used. To simplify, an example would be that as things stand (without the restatement by the Government) a domestic regulation which implements an EU directive, for example the Welfare of Animals at the Time of Killing (England) Regulations 2015, would not be repealed at the end of 2023 by section 1 as enacted, but the provisions of the directly applicable EU directive which underpins that same regulation, Regulation EU 1099/2009 on the protection of animals at the time of killing, would be repealed by section 2. This scenario is very unlikely as animal welfare, as well as food safety and environmental protection, is and will remain a key political issue and important factor in any trading relationship with the EU and the UK’s other trading partners.

Despite this political reality, given the vast majority of food safety, environmental and animal welfare laws in the UK are based on EU law, there is currently a huge amount of uncertainty about what exactly the rules will be after 2023.

The abolishing of the supremacy of EU law will, in our view, have a larger impact on food, animal welfare and environment law. Currently, where there is a conflict in the interpretation of the meaning of the law between a piece of domestic law and retained EU law, the interpretation of the retained EU law provision takes precedence. The Retained EU Law (Revocation and Reform) Act 2023 switches that the other way around. It also applies to case law. Therefore, where the Courts have been interpreting a provision one way for years, that interpretation will not apply after the end of 2023. This is likely to lead to increased litigation on specific points of law, with legal uncertainty continuing in most areas until the higher courts have decided those issues.

Essentially, the regulatory legal landscape is about to experience the biggest change since Brexit. We do not know yet what the situation is going to look like by the end of this year. Farmers and food businesses may face more confused guidance and enforcement action by regulators who struggle to navigate the change of supremacy and principles.

Our regulatory team, who are recognised experts in food, animal welfare and environment law, will keep you updated on developments and are happy to help if you and your business face any enforcement action by local or national authorities.