Head and shoulders photograph of Evanna Fruithof


Evanna Fruithof highlights the impact that this new UK legislation may have on the advice barristers give to their clients, potentially even in areas not usually associated with EU law.

The Retained EU Law (Revocation and Reform) Act 2023 (REULA23) has been in force since the beginning of this year. In its wake, legal advice that you may confidently have given in the past may, if it had its roots in EU law, no longer be so watertight. This blog runs through the background, provides advice to practitioners, and sets out Bar Council activities.

A little background

The Retained EU Law Bill, tabled in September 2022, was intended effectively to remove from the UK statute books all express traces of EU Law. The primary target was retained EU law, that is EU law as it applied in the UK on 31 December 2020, as categorised under sections 2-4 of the European Union (Withdrawal) Act 2018.

During its passage through the UK Parliament the Bar Council repeatedly expressed serious concerns about the Bill, amongst other things stressing the legal uncertainty and regulatory instability that the legislation was likely to generate. To some extent, these concerns were assuaged by the Government’s decision to limit the main sunsetting provision to a finite list of a few hundred named pieces of retained EU law (REUL). Thus, 587 REUL instruments fell at the end of last year, many of them already obsolete. Nonetheless, several thousand other pieces of EU derived legislation, some not yet identified as such, survive. These are now known as “assimilated law”.   

The problem: uncertainty

Another survivor, unfortunately, was the broader uncertainty. Sections 2-4 of REULA23 (now in force) abolished general principles of EU law as a guide to interpretation of assimilated law.  Section 6 (although not yet in force) provides that domestic courts are not bound by retained EU case law (that is to say, judgments of the Court of Justice of the EU [CJEU] and its General Court), subject to defined exceptions (such as where such judgments have been modified or applied in domestic case-law). 

Thus, not only is assimilated law suddenly open to new interpretations, but existing precedent may no longer bind the UK courts. Moreover, it is not clear what the relationship is between the provisions of REULA23 that preserve the effect of domestic case law interpreting assimilated law and those that abolish general principles as a guide to interpretation – given that domestic case law, and CJEU judgments which it applies, will frequently have been based on applying those general principles. 

A further source of uncertainty is that domestic appellate courts (essentially, the Court of Appeal and Supreme Court) are given by REULA23 a wider basis for departing from previous domestic case law interpreting assimilated law, so that at appellate level even more arguments as to what assimilated law means are “up for grabs”.

This uncertainty arising from REULA23 is likely to affect, in unpredictable ways, both the law and how it is to be interpreted across multiple practice areas in England and Wales, and not only those traditionally associated with EU or international work. It is beyond the scope of this blog to attempt to list these. Indeed, a central part of the problem is that no one yet knows quite how much of our law has been thrown into question by this new legislation. 

More light will be shed as and when lawyers are called to advise on situations that have arisen since the beginning of 2024 and any resulting legal disputes begin to come before regulators and courts – a process that will take some time.

What should practitioners do?

In the meantime, the Bar Council urges practitioners systematically to consider the possibility that the law applying to a particular case, even if purely domestic in nature (including, but certainly not limited to, employment or consumer rights, environmental or fundamental rights protections, health and safety regulations) may have its roots in EU law. To the extent that it does, the above analysis shows that the status of the law and the rules governing its interpretation may have changed overnight on 31 December 2023, or may do so once section 6 comes into force, in ways that the courts themselves have yet to grapple with.    

In addition, it would be prudent for practitioners to monitor whether such law may have since been altered by ministerial exercise of the powers granted by e.g. section 14(3) REULA23, which, being subject to minimal parliamentary scrutiny, could potentially pass unnoticed. Tax practitioners should also note, as a contrast, that section 28 of the Finance Act 2024 systematically disapplies sections 2-4 of REULA23 from VAT legislation, thereby preserving the pre-REULA23 position in that area. 

Indeed, it is worth highlighting here that many of the statutory instruments that have so far been made under REULA23 are wholly or partly attempts to restate the effect of the application of general principles of EU law in areas where government departments have identified a risk that the effect of disapplying general principles of EU law would result in unwelcome policy consequences. Examples include regulations made in relation to data protection, regulations to protect consumers’ rights when flights are delayed or cancelled, and regulations preventing the removal of employees’ rights to carry over holiday entitlement unused due to sickness or failure to inform employees of their entitlement.

Please provide feedback

It would assist the profession as a whole if practitioners, when they do come across problems or uncertainties arising from the operation of REULA23, were to feed those concerns into the Bar Council’s European Committee, via Evanna Fruithof. We may even be able to turn the ministerial powers provided by REULA23 to positive effect by suggesting helpful law reforms that might resolve the difficulty identified.    

How do I find out more?

A good starting point:

  • Schedule 1 to REULA23 lists the instruments that have been revoked.
  • The extent to which ministers have used their powers under REULA23 to date can be seen from the interactive REUL Public Dashboard. As this continues to be updated it should be monitored. 

Is the Bar Council still active on this? 

  • Most recently, the Bar Council submitted a short response to the House of Commons European Scrutiny Committee Inquiry on Retained EU law: the progress and mechanics of reform.
  • We continue to urge the government to devote resources to anticipating, identifying, and dealing with these problems as they emerge and to consider providing a public contact point on the website of each department to which others can address their concerns.
  • We have also emphasised the importance in areas of highly complex technical regulation (which much assimilated law is) of careful and thorough engagement and consultation with business and outside experts, the Bar included, before reform is implemented, even in cases where it is not intended to make any significant substantive change, such as “restatement” legislation made under section 13 of REULA23.


Evanna Fruithof has represented the Bar on EU policy matters for the past 25 years. Called to the Bar in 1985, she practised in London for five years before stints in the European Commission, a City law firm, and a Brussels Political Think Tank. She established the Bar Council Brussels Office in 1999.