Brexit: UK’s ‘sunset’ law bill to ‘seriously curtail legal certainty’
Margaret TaylorWednesday 22 February 2023
The process of ‘sunsetting’ laws envisioned under the Retained EU Law (Revocation and Reform) Bill – introduced into the UK Parliament in autumn 2022 – has led to fears of significant legal uncertainty. At the time, then-Business Secretary Jacob Rees-Mogg said the intention was to complete the Brexit process by removing a raft of EU laws that had never been intended to ‘sit on the statute book indefinitely’. He told the UK’s House of Commons that: ‘The time is now right to bring the special status of retained EU law in the UK statute book to an end on 31 December 2023, in order to fully realise the opportunities of Brexit and to support the unique culture of innovation in the UK.’
The laws in question had been incorporated as part of the UK’s membership of the EU and, to avoid any kind of cliff edge on the day that the UK left the bloc, were ported over on departure day to ensure a smooth transition. The bill envisages ‘sunsetting’ any relevant laws that the government has not been able to reform by the end of 2023 – meaning several thousand pieces of legislation, if not reviewed, could simply cease to exist. It will, according to a Scottish Parliament committee that has scrutinised the bill, lead to the very cliff edge the porting of the laws was supposed to avoid.
‘The evidence we heard was stark and there is deep concern over the legislative cliff edge and the threat this bill poses in key areas’, says Clare Adamson, Member of the Scottish Parliament and the convenor of its cross-party Constitution, Europe, External Affairs and Culture Committee. Noting that the sunset clause doesn’t provide devolved administrations with enough time to consider which laws will be retained and which are likely to be scrapped, Adamson said the Committee was concerned about the impact on a range of areas such as food standards, animal health and environmental protection.
Many of the laws that could go are ones which currently provide confidence for businesses and individuals and underpin the UK’s reputation as a fair and just society
Stephen Denyer
Chair, IBA Rule of Law Forum
The bill proposes to go much further than that, though, with Tom Scourfield, UK Chair of the Consumer Products Sector Group at CMS in London, stressing that, if enacted, the legislation will have ‘a very significant effect on the UK legal and regulatory framework, with its impact being felt across a very broad spectrum of legal rights and industries’.
It’s for this reason that Stephen Denyer, Chair of the IBA Rule of Law Forum and Director of Strategic Relationships at The Law Society of England and Wales, says the bill is a ‘thoroughly bad piece of prospective legislation that is threatening to seriously curtail legal certainty’. It ‘constitutes a major shift in the administration of justice by allowing courts equivalent in authority to, or higher than, the Court of Appeal, to consider whether to depart from retained case law. This could result in a reduction of legal certainty through the emergence of novel judgments that are either not binding on other courts or are inconsistent with precedent. This would mean that UK citizens and businesses will not have certainty about what the law is due to these varying interpretations, and, unlike the sunset clause, this will not be a time-limited issue so could cause ongoing uncertainty for decades to come, further undermining business confidence.’
Denyer adds that elements of the over 3,000 pieces of retained EU law could disappear overnight, including provisions in areas such as employment law or consumer rights. ‘Many of the laws that could go are ones which currently provide confidence for businesses and individuals and underpin the UK’s reputation as a fair and just society’, he says.
A spokesperson for the UK Department for Business, Energy & Industrial Strategy (BEIS) insisted that government could deliver on the task by the deadline, highlighting its work during the Brexit transition period and the pandemic. The spokesperson said that reforms wouldn’t mean a step down from the UK’s high standards in areas such as workers’ rights, and the regulations repealed would be those perceived as holding the UK back, for example.
Much of the opposition to the bill has focused on the way it’ll dilute workers’ rights, with trade union umbrella group the Trades Union Congress identifying a range of rights, including holiday pay, the right to parental leave and protections for part-time and fixed-term workers, which it expects to be weakened or lost. Giving evidence in parliament in late 2022, Shantha David, Head of Legal Services at trade union UNITE, said the bill will ‘strip out some very basic employment rights’, with limited opportunity for challenge.
Noting that as the bill would effectively rip up decades of legal judgments and case law, she said that ‘the only way to clarify legislation as we go along, and to get certainty in the law, will be via litigation, and litigation is costly, and pursuing appeals in the senior courts will take a long time because of the delays, given that tribunals and lower courts will no longer be bound by retained EU law’. Denyer believes it likely that such litigation will be necessary, with the deadline for the sunset clause fast approaching and the ability for parliament to effectively decide which laws will be impacted being limited.
The BEIS told Global Insight that lower courts will still be bound by retained case law, while higher courts will have the ability to take account of it, much as they can with judgments made in foreign jurisdictions.
‘Through the creation of a sunset clause, causing most retained EU law to expire at the end of 2023, the UK government is setting itself an overly ambitious target to review and consider important areas of UK legislation by the end of this year’, says Denyer. ‘In sticking to that target, the government risks a rush of key legislation ahead of the end of 2023, not giving itself, stakeholders, or parliament enough time for adequate consideration due to competing priorities facing the UK, such as the cost of living crisis.’
Though the bill, which is currently making its way through the House of Lords, has yet to be passed and could end up being significantly altered, Denyer says that to avoid falling into the trap of ‘bad law-making’, the sunset clause should be extended. ‘In my view the UK government should extend the timeline for reform and remove the deadline of 31 December 2023’, he adds.
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