Lord Frost: changes incoming for retained EU law

A major issue for English civil lawyers since Brexit has been making sense of the complex new idea of “retained EU law”.

Sam Cuthbert wrote an excellent summary of the key points in a blog back in January of this year. 2TG have recently released a detailed analysis of the many difficult questions about this area that will need to be answered in future cases.

But Lord Frost, the Government’s former chief Brexit negotiator, has indicated in a statement to the House of Lords yesterday that it is already time to “revisit this huge, but for us, anomalous, category of law”.

There are apparently two purposes of this review.

The first is slightly unclear but perhaps hints at the removal of the supremacy of the retained provisions:

First of all, we intend to remove the special status of retained EU law, so that it is no longer a distinct category of UK domestic law, but normalised within our law, with a clear legislative status. Unless we do this, we risk giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament. This review also involves ensuring that all courts of this country should have the full ability to depart from EU case law according to the normal rules. In so doing we will continue, and indeed finalise, the process of restoring this sovereign Parliament, and our courts, to their proper constitutional positions.

The second concerns the content of retained EU law:

Our second goal is to review comprehensively the substantive content of Retained EU law. Now some of that is already under way – for example our plans to reform the procurement rules that we inherited from the EU, or the plan announced last autumn by my RHF the Chancellor to review much financial services legislation. But we are going to make this a comprehensive exercise and I want to be clear: our intention is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK.

The means to accomplish these changes will be a “tailored” legislative mechanism:

That problem is obviously a legislative problem and accordingly the solution is also likely to be legislative. We are going to consider all the options for taking this forward. In particular, we will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law – in a way which reflects the fact that, as I have made clear, laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.

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