Retained EU Law (Revocation and Reform) Act 2023

Sunsets of retained EU law

Sunset of EU-derived subordinate legislation and retained direct EU legislation

1

• (1) Legislation listed in Schedule 1 is revoked at the end of 2023, to the extent specified there.

• (2) In that Schedule—

• (a) Part 1 lists subordinate legislation;

• (b) Part 2 lists retained direct EU legislation.

• (3) The revocation of an instrument, or a provision of an instrument, by subsection (1) does not affect an amendment made by the instrument or provision to any other enactment.

• (4) Subsection (1) does not apply to anything specified in regulations made by a relevant national authority.

• (5) No regulations may be made under subsection (4) after 31 October 2023.

Sunset of retained EU rights, powers, liabilities etc

2

• (1) Section 4 of the European Union (Withdrawal) Act 2018 (saving for rights, powers, liabilities etc under section 2(1) of the European Communities Act 1972) is repealed at the end of 2023.

• (2) Accordingly, anything which, immediately before the end of 2023, is retained EU law by virtue of that section is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).

Assimilation of retained EU law

Abolition of supremacy of EU law

3

• (1) In section 5 of the European Union (Withdrawal) Act 2018 (exceptions to savings and incorporation), before subsection (1) insert—

(A1) The principle of the supremacy of EU law is not part of domestic law. This applies after the end of 2023, in relation to any enactment or rule of law (whenever passed or made). (A2) Any provision of retained direct EU legislation— (a) must, so far as possible, be read and given effect in a way which is compatible with all domestic enactments, and (b) is subject to all domestic enactments, so far as it is incompatible with them. (A3) Subsection (A2) is subject to— (a) section 186 of the Data Protection Act 2018 (data subject’s rights and other prohibitions and restrictions); (b) regulations under section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023.

• (2) In that section, at the end insert—

(8) In this section “domestic enactment” means an enactment other than one consisting of retained direct EU legislation.

• (3) In consequence of subsection (1), the European Union (Withdrawal) Act 2018 is amended as follows—

• (a) in section 5—

• (i) omit subsections (1) to (3);

• (ii) in subsection (7), for “(1)” substitute “(A1)”;

• (b) in section 7(5)(a), for “(1) to (3)” substitute “(A1) to (A3)”;

• (c) in Schedule 1 omit paragraph 5(2).

Abolition of general principles of EU law

4

• (1) The European Union (Withdrawal) Act 2018 is amended as follows.

• (2) In section 5 (exceptions to savings and incorporation)—

• (a) after subsection (A3) (inserted by section 3(1)) insert—

(A4) No general principle of EU law is part of domestic law after the end of 2023.

;

• (b) omit subsection (5).

• (3) In section 6 (interpretation)—

• (a) in subsection (3)(a) omit “and any retained general principles of EU law”;

• (b) in subsection (7) omit the definition of “retained general principles of EU law”.

• (4) In section 7(5)(b) (status of retained EU law) omit “and retained general principles of EU law”.

• (5) In section 21(1) (index of defined expressions), in the table, omit the entry for “Retained general principles of EU law”.

• (6) In Schedule 1 (further provision about exceptions to savings and incorporation) omit paragraphs 2 and 3 (general principles of EU law) and the italic heading before them.

• (7) In paragraph 39 of Schedule 8 (transitional provision relating to certain exceptions to savings and incorporation)—

• (a) in sub-paragraph (1) for “1 to 4” substitute “1 and 4”;

• (b) in sub-paragraph (2) for “1 to 4” substitute “1 and 4”;

• (c) in sub-paragraph (3) for “paragraphs 3 and” substitute “paragraph”;

• (d) in sub-paragraph (4) for “1 to 4” substitute “1 and 4”;

• (e) omit sub-paragraphs (5) and (6).

“Assimilated law”

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• (1) As regards all times after the end of 2023, the things listed in the left-hand column are to be known by the names in the right-hand column.

At or before the end of 2023	After the end of 2023
Retained EU law	Assimilated law
Retained case law	Assimilated case law
Retained direct EU legislation	Assimilated direct legislation
Retained direct minor EU legislation	Assimilated direct minor legislation
Retained direct principal EU legislation	Assimilated direct principal legislation
Retained domestic case law	Assimilated domestic case law
Retained EU case law	Assimilated EU case law
Retained EU obligation	Assimilated obligation
Retained EU law governing the CAP direct payment schemes	Assimilated law governing the CAP direct payment schemes
Retained direct EU CAP legislation	Assimilated direct CAP legislation

• (2) Accordingly, as regards all times at or before the end of 2023, the things listed in the right-hand column continue to be known by the names in the left-hand column.

• (3) Schedule 2 contains amendments consequential on subsection (1).

• (4) A reference in an enactment to a thing in the left-hand column of the table in subsection (1) is to be read, as regards all times after the end of 2023, as a reference to the thing by its name in the right-hand column.

• (5) Subsection (4) does not apply to any title of an enactment (including any provision about how an enactment may be cited) or any reference to a title of an enactment.

• (6) The provision that may be made by regulations under section 19 (power to make consequential provision) in consequence of subsection (1) of this section includes, in particular—

• (a) provision adding entries to the table in subsection (1) for things which relate to the things for which there are entries in the table (and adding definitions for those things to subsection (7));

• (b) provision amending an enactment in consequence of the name of a thing being changed by subsection (1) (including by virtue of regulations under section 19).

• (7) In this section—

• “retained case law”, “retained domestic case law” and “retained EU case law” have the meaning given by section 6(7) of the European Union (Withdrawal) Act 2018 (as it has effect on the day on which this Act is passed);

• “retained EU law”, “retained direct EU legislation”, “retained direct minor EU legislation”, “retained direct principal EU legislation” and “retained EU obligation” have the meaning given by Schedule 1 to the Interpretation Act 1978 (as it has effect on the day on which this Act is passed);

• “retained EU law governing the CAP direct payment schemes” and “retained direct EU CAP legislation” have the meaning given by section 2 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 (as it has effect on the day on which this Act is passed).

Interpretation and effect of retained EU law

Role of courts

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• (1) Section 6 of the European Union (Withdrawal) Act 2018 (interpretation of retained EU law) is amended as specified in subsections (2) to (7).

• (2) In subsection (4) (courts not bound by retained case law)—

• (a) in paragraph (b)—

• (i) in sub-paragraph (i) omit the words from “otherwise” to “1998)”;

• (ii) after sub-paragraph (ii) (and on a new line) insert “(except, when sitting as a court of appeal in relation to a compatibility issue or devolution issue, so far as there is relevant domestic case law which modifies or applies the retained EU case law and is binding on the court);”;

• (b) for paragraph (ba) substitute—

(ba) a relevant appeal court is not bound by any retained EU case law (except so far as there is relevant domestic case law which modifies or applies the retained EU case law and is binding on the relevant appeal court), and

;

• (c) after paragraph (c) (and on a new line) insert “and see also subsection (5ZA) below and sections 6A to 6C.”

• (3) For subsection (5) substitute—

(5) In deciding whether to depart from any retained EU case law by virtue of subsection (4)(a), (b) or (ba), the higher court concerned must (among other things) have regard to— (a) the fact that decisions of a foreign court are not (unless otherwise provided) binding; (b) any changes of circumstances which are relevant to the retained EU case law; (c) the extent to which the retained EU case law restricts the proper development of domestic law.

• (4) After that subsection insert—

(5ZA) A higher court may depart from its own retained domestic case law if it considers it right to do so having regard (among other things) to— (a) the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart; (b) any changes of circumstances which are relevant to the retained domestic case law; (c) the extent to which the retained domestic case law restricts the proper development of domestic law.

• (5) Omit subsections (5A) to (5D) (power to make regulations about which courts or tribunals are bound by retained EU case law).

• (6) After subsection (6A) insert—

(6B) In this section— - “compatibility issue” has the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995; - “devolution issue” has the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998; - “relevant appeal court” means— the Court Martial Appeal Court, the Court of Appeal in England and Wales, the Inner House of the Court of Session, the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983, the Lands Valuation Appeal Court, or the Court of Appeal in Northern Ireland; - “relevant domestic case law” means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect on or after IP completion day.

• (7) In subsection (7) before the definition of “retained case law” insert—

• “higher court” means— the Supreme Court, the High Court of Justiciary when sitting as mentioned in subsection (4)(b)(i) or (ii), or a relevant appeal court;

.

• (8) After section 6 of that Act insert—