New Bill to end EU-derived law in UK

The UK government has introduced a new Bill which aims to end the status of retained EU law from the end of 2023, and enable the government to amend, repeal and replace retained EU law via secondary legislation.

The Retained EU Law (Revocation and Reform) Bill sets out the government’s principles for the future treatment of retained EU law, which it points out was ‘never intended to sit on the statute book indefinitely’.

The basic principle is that retained EU law will either be removed from or ‘assimilated’ into UK law by 31 December 2023, subject to review and extension until 2026.

The government previously produced a Retained EU Law Dashboard in June 2022, mapping out over 2,400 pieces of retained EU law across 300 different policy areas and 21 sectors of the economy. The Dashboard sets out 374 pieces of retained EU law associated with the Treasury and 228 with HMRC.

Having already identified the different pieces of retained EU law, the Bill now enables the government to decide how to deal with it, including determining what needs to be put onto a more permanent statutory footing for the future.

In relation to tax law, future changes to legislation will be made via the Finance Bill (or under secondary legislation enabled by the Finance Bill) as usual. The government will also introduce a ‘bespoke’ legislative approach for retained EU law relating to VAT, excise duties and customs duties in a future Finance Bill. ‘This approach will revoke any remaining retained direct EU law that the government did not repeal in the Taxation (Cross-border) Trade Act 2018 and make clear that UK Acts of Parliament and subordinate legislation are supreme’.

The impact of this legislation could be extremely significant, depending on what the government decides to do. For example, the VAT Regulations, SI 1995/2518, are listed on the Retained EU Law Dashboard as legislation that will otherwise expire in 2023.

Other key points include:

• The majority of retained EU law will expire automatically on 31 December 2023. This includes EU-derived law contained in domestic secondary legislation (i.e. UK statutory instruments).
• Any retained EU law that remains in force will be ‘assimilated’ into UK law ‘by the removal of the special EU law features previously attached to it’ which seems to be a novel concept.
• Before the expiry date, the UK government and devolved administrations will determine which retained EU law will be allowed to expire and which will be incorporated into UK law. The potential extension of the expiry date to 2026 will allow additional time for this process where necessary.
• The general principle of EU law taking supremacy where there is a conflict with UK law will be reversed, although the Bill provides a power to preserve the current hierarchy.
• The UK courts will have greater discretion to depart from retained case law.