Brexit and the Retained EU Law Dashboard – The 2023 Sunset Clause

The government set a December 2023 sunset while its inventory of retained EU law was still expanding. Months later, it replaced the automatic deadline with a list of named revocations.

Rising Figures for Retained EU Law

When the government launched its Retained EU Law Dashboard on 22 June 2022, the public baseline was 2,417 pieces of retained EU law spread across more than 300 policy areas. Retained EU law was the body of EU-derived rules kept in force after Brexit so that the legal system did not abruptly lose regulations that had applied before departure.

Within months the original count was already being revised. A House of Commons Library briefing cited Financial Times reporting that the National Archives had identified about 1,400 instruments that may have been missing from the dashboard. By January 2023, the dashboard contained more than 3,700 items.

Retained EU Law Bill had meanwhile been introduced on 22 September 2022. It set 31 December 2023 as the date on which most retained EU law within its scope would lapse unless ministers acted to keep or replace it.

The count continued to rise after the legislation passed. The first statutory report, published in January 2024 recorded 6,757 pieces of retained EU law, compared with the dashboard’s original 2,417. More than 4,000 items had been added to the count.

Administrative Challenges to the Rapid Sunset

Administrative resistance was visible before the Bill was introduced.

On 14 June 2022, the Guardian reported on a leaked letter from Environment Secretary George Eustice to Jacob Rees-Mogg, then Minister for Brexit Opportunities. Eustice warned that trying to deal with the relevant regulations at once would divert officials towards minor matters and amount to ‘misplaced energy’. In the same report, senior Whitehall sources and officials described the proposed rapid sunset as ‘literally impossible’.

The phrase ‘literally impossible’ was not quoted from Eustice’s letter itself. His documented warning concerned workload, priorities and the cost of forcing departments to process less important rules on a fixed timetable.

Defra had a particular reason to worry about volume. At the launch of the dashboard, it was responsible for 570 pieces of retained EU law, the largest departmental total identified in the record. For Defra, the general deadline therefore translated into hundreds of individual legal decisions.

Regulatory Policy Committee Red Ratings

The Bill’s impact assessment was submitted to the Regulatory Policy Committee on 26 September 2022. An impact assessment is supposed to set out the expected costs, benefits and practical effects of proposed regulation.

On 21 November, the RPC issued a Red Rating. It said the assessment was ‘not fit for purpose’ and that the department had not made a sufficient case to support the regulatory intervention. The committee also criticised the lack of evidence needed to assess the effects of changing individual pieces of retained EU law.

A Red Rating was the committee’s most severe judgement on an impact assessment. Its later 15-year review recorded a marked rise in Red Ratings during 2021 to 2023 after none had been issued between 2016 and 2020.

The RPC opinion did not produce an immediate change in the government’s public position. New Law Journal later reported that on 30 November 2022, nine days after the Red Rating was issued, Rishi Sunak rejected calls to postpone the 31 December 2023 deadline.

Grant Shapps, who had succeeded Rees-Mogg as Business Secretary in October, wrote to the Business Select Committee on 21 December. His explanation was that the Red Rating reflected ‘the limited information available’ at the time the Bill was introduced. Shapps described why the assessment contained limited quantified evidence. The RPC’s published opinion stated that the evidence presented was insufficient to support the proposed intervention.

The Operational Burden of Preserving EU Legislation

January 2023 brought another dashboard revision. The published total moved beyond 3,700 while departments were already working towards the December deadline.

That created a practical problem for departments. Allowing an instrument to sunset was itself a legal decision. Preserving one required work too, often through secondary legislation. The European Scrutiny Committee later described departments having to prevent ‘unintended sunsetting’ and ‘legislative holes’.

Departments had to decide whether a law could lapse, needed to be preserved or required some other treatment before the deadline arrived.

Kemi Badenoch would later describe the result in more direct terms: the programme had become more about reducing legal risk by preserving EU laws than about prioritising meaningful reform.

The Ministerial Stocktake and Policy Retreat

Badenoch became Secretary of State for Business and Trade on 7 February 2023 and inherited responsibility for the Bill. During March and April she carried out an internal stocktake of the retained EU law programme.

The surviving public account says departments were using their capacity to prepare statutory instruments needed to preserve laws rather than concentrating on reform. A statutory instrument is secondary legislation made under powers already granted by Parliament. In this case, it provided one route for keeping rules in force before the sunset date.

Badenoch announced the change in Written Ministerial Statement HCWS764 on 10 May 2023. Instead of allowing the general sunset to remove laws automatically, the government would name those it intended to revoke. Badenoch described the list as covering ‘around 600’ pieces of retained EU law. The schedule tabled at the time contained 587; the final Act contained 576.

Badenoch said the revised approach would allow the government to focus on regulations that could deliver benefits for business and economic growth. She also acknowledged what the original mechanism had been doing inside departments: officials were spending time preserving laws to reduce legal risk.

Deregulation Through Targeted Revocations

The replacement schedule was presented as a more targeted route to deregulation. Badenoch said removing the listed measures would lighten burdens on business and help spur economic growth.

Five days later, Sir William Cash, then chair of the European Scrutiny Committee, wrote to the Prime Minister with a markedly different description. On behalf of the committee, he said that almost all the retained EU law in the schedule concerned matters that were ‘trivial, obsolete’ or lacked legal or political importance.

Among the measures Cash’s committee singled out were wheat-bran import quotas relating to Réunion and rules allocating fishing opportunities for São Tomé and Príncipe.

Cash’s letter did not dispute that the items could be revoked. Its challenge was to the significance attached to the schedule. The government presented the list as part of a programme to reduce regulatory burdens. The committee argued that the contents were, almost without exception, too obsolete or marginal to carry that economic weight.

Source Box

Sources include: the House of Commons Hansard statement on ‘EU Retained Law’ of 22 June 2022 and the Welsh Government’s ‘Written Statement: Retained EU Law Interactive Dashboard’ of 27 June 2022; House of Commons Library briefing CBP-9701, ‘Retained EU Law (Revocation and Reform) Bill 2022-23: Bill Progress’; the Regulatory Policy Committee’s 21 November 2022 opinion on the ‘Retained EU Law (Revocation & Reform) Bill’; Written Ministerial Statement HCWS764, ‘Regulatory Reform Update’, of 10 May 2023; and Sir William Cash’s European Scrutiny Committee letter to the Prime Minister of 15 May 2023.