Retained EU Legislation Bill: Part 2: Will the Bill survive the new Government?

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 (“the Bill”) was introduced to the House of Commons. The aim of the Bill is to revoke or replace all current retained EU law which applies in the UK, which would occur automatically on 31 December 2023.

However, the Bill is already facing an uncertain future due to the dramatic political events of the past few weeks. There are already signs from Sunak’s new government that the Bill could be postponed or abandoned altogether. The government has now launched a public consultation on the Bill, which renders its future even more uncertain. There is an open call for evidence, and the Public Bill Committee will today start its line-by-line review of the Bill. Many in the IP field, and across the board, will be monitoring the Bill’s progress with interest.

If you would like to learn more on how the Bill applies in the IP industry, please find our Law-Now on the Bill’s application to copyright here.

Public Consultation

The consultation, which launched on 26 October 2022, asks for written submissions from anyone with “relevant expertise and experience or a special interest” in the Bill. The consultation was launched as part of the Public Bill Committee’s scrutiny of the Bill, which is due to take place between 8 and 22 November. Those wishing to make submissions for the consultation can find further details here.

The consultation coincides with news that the new Prime Minister, Rishi Sunak, is considering postponing the Bill. According to the Financial Times, government officials have confirmed Sunak is considering whether to press ahead with the “sunset clause”, which would revoke retained EU law by 31 December 2023. It also coincides with the main advocate of the Bill, now-former Business Secretary Jacob Rees Mogg’s, departure from office. His departure may indicate the Bill is now dead in the water, as suggested in the second debate on the Bill by several MPs across both sides of the House of Commons.

The main concern seems to be the huge burden the Bill would place on the civil service. Media reports today suggest that the number of laws to review is actually 3,800, rather than the 2,400 originally envisaged to be captured by the Bill. By way of example, in order meet the December 2023 deadline, it is estimated 400 civil servants would be needed to review the 300 retained EU laws under the purview of the Department for Business, Energy and Industrial Strategy alone. With what now appears to be 3,800 pieces of legislation up for review, the ensuing pressure on the civil service could undermine the workings of government, particularly given the ongoing cost of living crisis. On the IP front, the UKIPO has indicated that it is still digesting the scale of the task. Given that there is currently no Minister for IP, it is unclear what approach will ultimately be taken. However, the substantial amount of work involved in simply identifying relevant law means that the UKIPO is already reallocating resources and personnel to this project, taking them away from long overdue projects such as the reform of design law.

Comment

The announcements and consultation suggest the new Government has some reluctance to proceed with the former Government’s plan. The gargantuan amount of administration involved may well prove fatal to the Bill.

However, it is worth remembering that Sunak’s leadership campaign included a pledge to review all retained EU law within his first 100 days in office. Whilst Sunak’s aides confirm that timescale has now been dropped, it is still indicative of the political importance of the Bill to the new Prime Minister.

Rather than a full U-turn on the Bill, a perhaps more likely outcome would be for the ambitious timescale to be extended, making the transition more manageable for the civil service. We may see a more achievable deadline of 23 June 2026 being set, which would mark the 10-year anniversary of the Brexit Referendum. That date is already present in the current Bill, marking the hard deadline beyond which the ‘retained’ status of any piece of EU law cannot be extended. Either way, the Bill in its current form is likely to change significantly. We will monitor with interest the Public Bill Committee’s review and consideration of the Bill over the coming weeks.

This article was co-authored by Oliver Roberts, Trainee Solicitor at CMS.