The Failed Bonfire of EU Laws

On 10 May 2023, Kemi Badenoch told Parliament that the retained EU law programme had run into ‘legal uncertainty’ and plain time pressure. That was an awkward thing to admit. Less than eight months earlier, ministers had introduced a Bill designed to let most retained EU law fall away at the end of 2023 unless officials stepped in to save it.

The plan had been sold as a quick route to post-Brexit freedom. It ended with ministers keeping most of the rules in place. The problem was already visible when the scheme began. The government was trying to remove a body of law it had not fully counted and had not properly assessed.

The Map That Wasn’t There

Jacob Rees-Mogg launched the Retained EU Law Dashboard, the government’s public inventory of retained EU law, on 22 June 2022. He presented it as the public map of the legal stock carried over from EU membership. In the Commons that day, he called the wider exercise part of a ‘British-style revolution’. The message was simple enough. First, find the rules, then decide which ones should go.

The first version of the dashboard listed 2,417 pieces of retained EU law. Rees-Mogg and his allies tied that number to a broader drive to scrap 1,000 rules. Retained EU law was EU-derived law copied into UK domestic law at the end of the transition period. The dashboard was supposed to show what was actually there before ministers started talking about mass removal.

The trouble was obvious early on. The Hansard Society warned that the dashboard was incomplete. That matters because an incomplete inventory is no basis for a deadline-driven repeal programme. A missing entry on a website is one thing. A missed legal instrument under a sunset clause is something else.

Ministers had a problem. They were talking about wiping out large amounts of law while the official count was still incomplete. That’s risky under any system. It becomes even riskier when laws are set to expire automatically on a fixed date, because a missed item is not just overlooked. It can disappear.

Resistance appeared before the Bill itself arrived.

Reporting in June 2022 showed ministers and officials arguing over whether a cliff-edge repeal date could be made to work. George Eustice objected to the cost and disruption. Officials were reported as saying that the task of reviewing the whole body of law in time was ‘literally impossible’. Even the longer deadline discussed at that stage, 23 June 2026, still pointed to a huge review exercise. The latter Bill would demand something harsher by the end of 2023.

The ‘Not Fit for Purpose’ Warning

The sharpest warning came from inside the official system. The Regulatory Policy Committee, the watchdog that checks whether government impact assessments are built on a sound enough evidence base, looked at the Bill and gave the analysis a red rating. Its verdict was ‘not fit for purpose’.

That was not a stylistic complaint. The committee said the department had not properly considered, or quantified, the full effects of the Bill. It also said there had been no assessment of the impact of changing individual pieces of retained EU law. Parliament was being asked to approve a Bill with wide effects and a thin evidential base.

The committee also pointed to the missing assessment for small and micro businesses. That gap was serious. Big firms can usually pay for legal advice and compliance support. Smaller firms often cannot. A system that leaves whole areas of law under review against a hard deadline does not hit everyone evenly.

Ministers were asking Parliament to approve a guillotine before they had worked out what stood beneath it. The Bar Council called this ‘legislative vandalism’ and warned that it would damage regulatory stability. The problem was simpler than that phrase sounds. People, businesses and regulators need to know which rules still apply and when they change.

The Sunset Clause

The Retained EU Law (Revocation and Reform) Bill was introduced on 22 September 2022. Its core device was the sunset clause. A sunset clause is a rule that makes a law expire automatically on a set date unless further action is taken. Under this Bill, the default setting for much of retained EU law was that it would expire at the end of 2023.

That design counted more than the speeches around it. Under ordinary legislative practice, a minister who wants to repeal a rule usually has to identify it, justify the change and pass the law needed to remove it. Under the sunset model, officials had to find each law, examine it, decide whether it should survive and then take active steps to preserve or replace it before the clock ran out. The burden shifted to the side trying to keep legal continuity.

That shift created an administrative bottleneck. Whitehall departments had to search for instruments, determine whether they still operated, assess the consequences of losing them, and draft the legal changes needed to preserve them. Miss one item and the risk was not delay. The risk was accidental disappearance.

The Bar Council warned that the Bill threatened legal certainty and the UK’s reputation for competent regulation. A business deciding how to label equipment needs to know which rules are still in force. So does an employer dealing with working time obligations. So does a regulator trying to enforce safety standards before the deadline runs out.

The Bill also widened ministerial power. Ministers were given routes to revoke, replace or restate law with limited parliamentary scrutiny in many cases. The case for moving that quickly would have been stronger if the government had first identified the full body of law in scope and assessed what the changes might do. It was still working from an incomplete inventory and a red-rated evidence base.

The Great Retreat, May 2023

The retreat became public on 10 May 2023. In Written Ministerial Statement HCWS764, Badenoch announced that the universal sunset would be dropped. Instead of letting most unsaved retained EU law expire automatically, ministers would publish a schedule naming the laws they wanted to revoke. What was not named would stay.

That changed the default position. Under the 2022 Bill, laws expired unless someone acted to preserve them. Badenoch flipped that around. Ministers now had to name the laws they wanted removed, and everything else stayed in force.

Badenoch’s wording was careful, but the substance was plain enough. She said the pressure of time had shifted the exercise away from reform and into preservation. She also pointed to legal uncertainty. By that stage, departments still had not finished reviewing the law in scope, and the chance of rules dropping out by mistake had become too large to brush aside.

The numbers show how far the scheme had shrunk. Ministers and supporters had talked in terms of roughly 4,000 laws. The revocation schedule ended up with around 600 instruments. That is a different kind of exercise. Once officials had to identify each item and stand behind the decision to remove it, the grander version fell away.
It also answered the practical question that had been hanging over the whole plan. Could Whitehall find, assess and process this volume of inherited law against a fixed deadline. By May 2023, ministers had their answer. They were no longer backing the first model.

The Fossilisation of EU Law

The Retained EU Law (Revocation and Reform) Act 2023 received Royal Assent in July 2023. It did make constitutional changes. It removed the supremacy of EU law in the domestic hierarchy and created powers to revoke, restate or replace retained EU law. Those changes did not amount to the large-scale deletion first promised.

The practical core of the Act was the Schedule of Revocations. That schedule contained 587 instruments. The number tells its own story. A project framed as a mass cull ended with a few hundred named items, not several thousand.

Much of what was revoked appears to have fallen into the category that officials and practitioners often call low-hanging fruit. Care is needed there, because not every revocation was trivial. Even so, the broad shape is hard to miss. Once departments had to identify the law, explain its function and face the risk of unintended gaps, the bonfire shrank fast.

The word fossilisation helps here. A fossil is preserved material from an earlier system. The 2023 Act ended the special status of retained EU law as a category, but it left the substance of most of that law in place across the statute book. The legal badge changed. Most of the underlying rulebook did not.

That was not how the project had been sold in 2022. It happened because the basic requirements for rapid divergence were not in place. Officials still had to identify what each instrument did, who relied on it and what would happen if it vanished. Broad automatic repeal looked much less workable once that work began.

Sources

Sources include: the Retained EU Law (Revocation and Reform) Bill 2022 and the subsequent 2023 Act; the Cabinet Office ‘Retained EU Law Dashboard’; the Regulatory Policy Committee’s red-rated impact assessment opinion (November 2022); Hansard transcripts of Commons debates (June 2022) and Written Ministerial Statement HCWS764 (May 2023); civil society and legal audits, including the Hansard Society briefing ‘Five problems with the Retained EU Law (Revocation and Reform) Bill’ and the JUSTICE report ‘The State We’re In’ (September 2023); and contemporary reporting from ‘The Guardian’ (June 2022) regarding internal civil service warnings.