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28th April 2023

Second Brexit catastrophe narrowly avoided?

Second Brexit catastrophe narrowly avoided?
Stephen Morrall
Stephen Morrall

On 31 December 2020, at the end of the transition period following the UK’s exit from the EU, a snapshot was taken of EU law as it applied to the UK on that date and was retained as part of English law. 

It is known as ‘Retained EU Law’ which was to continue to apply until the government had a chance to introduce purely domestic law where that was needed. The government then introduced a bill containing a mechanism to delete all vestiges of EU law from English law, and a sunset clause whereby any part of Retained EU Law that was not expressly adopted or amended by 31 December 2023 would automatically be repealed. 

Thankfully, common sense seems to have prevailed and the FT has reported today that the government has abandoned the sunset clause and has avoided another catastrophe for the UK’s citizens and businesses, as it is clearly impossible to review and legislate for every piece of EU legislation by the end of the year. 

The effect of the sunset clause would have been that huge areas of English law would be left in a vacuum. Employment rights, product safety standards and other rules which enshrine important rights and facilitate trade with the EU would simply disappear with no target date for replacing them. 

This is analogous to that other sunset clause in article 50 of the Treaty on European Union which provided for automatic exit from the EU after two years, leaving the UK in a similar vacuum. 

However, the bill has not been entirely abandoned and we will need look at the small print when the next draft is published. The irony is that, far from Parliament taking back control, most of the changes are to be introduced by ministers and civil servants through secondary legislation which gets little Parliamentary oversight. This democratic deficit also needs to be addressed.