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How the government is planning to jettison retained EU law

How the government is planning to jettison retained EU law
Richard Kleiner

By Richard Kleiner

07 Mar 2022

The UK’s withdrawal from the European Union has not, as yet, ensured our departure from all EU-derived law.

Indeed, under the terms of the EU Withdrawal Act, a significant proportion of EU law remains under a new category of ‘retained EU law’, introduced as a stopgap. Provisions mandated that this retained law be only appealed or amended by primary legislation and therefore gave all EU Court of Justice case law the same status as Supreme Court decisions. As such, departing from these retained laws would be subject to considerable parliamentary scrutiny, and as for CJEU case law, very little scope to depart at all.

‘Taking Back Control’

As the “Leave Campaign” and indeed our current government have made clear from the outset, a Britain without EU “red tape” was and still is the vision for Brexit. In January 2022 the government made a move toward this vision by announcing a ‘Brexit Freedoms Bill’, alongside the publication of a Policy Paper laying out, in the words of our Prime Minister, how the government will be “keeping what works, changing what doesn’t”. The key take-aways from the paper are as follows:

  • A proposal to demote the status of retained laws through the introduction of targeted powers. This will mean that amendments and repeals will no longer have to be made through primary legislation.
  • The creation of a ‘Bespoke rule’ to tackle areas of overlap between retained EU law and domestic law. This proposal includes a review of whether the UK should remove directly effective EU rights that overlap with existing domestic law rights. It is likely there will be different approaches for different sectors.

An inquiry for stakeholders has also been launched by the House of Commons European Scrutiny Committee. According to the inquiry, the aim is to ascertain the effect of retained laws on daily lives, including employment rights and data protection. The committee is looking for stakeholder input, before the 14th March 2022, on issues including:

  • The nature of the relationship between retained EU law and Domestic law and its impact on the coherence of the statute book
  • How well retained EU law has performed in practice
  • Whether CJEU law should have any relevance on domestic law

Moving Forward

Although the Policy Paper proposes scarce new initiatives in technology and data, its critical approach to EU retained law is a significant development. If the government succeeds in removing the requirement to amend or appeal retained laws through primary legislation, changes will be able to be made much quicker, and with far less scrutiny.

Furthermore, demoting the status of CJEU case law would give the government greater opportunity to depart from them.

EU retained laws are a unique entity in domestic law, with no constitutional precedent, making the success of such proposals themselves, uncertain. However, if these changes are enacted, the UK may see its departure from EU law sooner than previously predicted. The impact of these changes on cross-border businesses, however, is yet to be established.


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