The REUL (Revocation and Reform) Act 2023 - Third Update

Jane Lambert

 

The Retained EU Law (Revocation and Reform) Bill received royal assent on 29 June 2023 and is now law (see Retained EU Law (Revocation and Reform) Act 2023 ("REUL")),   I outlined the bill in Retained EU Law (Revocation and Reform) Bill on 22 Oct 2022 and tracked its progress in my first and second updates on 6 Dec 2022 and 5 Feb 2023 respectively.

As I said in How Brexit has Changed IP Law on 17 Jan 2022, the European Union (Withdrawal) Act 1988 incorporated  Council regulations and general principles of European law into the laws of England and Wales, Scotland and Northern Ireland at 23|:00 from 31 Dec 2020 when EU law ceased to apply directly to the UK.  The incorporated principles entrenched EU legislation and judgments of the Court of Justice of the European Union into domestic law necessitating special procedures to depart from them.  REUL abolishes the entrenched status of retained EU Law and much of the implementing legislation.

Clause 1 (1) of the Bill, as introduced, would have revoked all "EU-derived subordinate legislation" and "retained direct EU legislation" on 31 Dec 2023.  "EU-derived subordinate legislation" was essentially secondary legislation made under s.2 (2) of, the European Communities Act 1972.  S.1 (1) of the Act limits the revocation to the legislation listed in Sched 1 of the Acr. Part 1 of that schedule lists subordinate legislation and Part 2 retained direct EU legislation.

In Retained EU law for intellectual property, the Intellectual Property Office has listed legislation which is to be revoked  at the end of this year:

• The Artist’s Resale Right (Amendment) Regulations 2009 (SI 2009/2792) 
• The Community Designs (Fees) Rules 2002 (SI 2002/2942) 
• Council Decision of 22 December 1994 on the extension of the legal protection of topographies of semiconductor products to persons from a Member of the World Trade Organization (94/824/EC) 
• Commission Regulation (EC) No 2245/2002 of 21 October 2002, and  
• Regulation (EU) No 386/2012 of 19 April 2012.

The following statutory instruments will take effect from 1 Jan 2024:

• The Design Right, Artist’s Resale Right and Copyright (Amendment) Regulations 2023 and
• The Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023.

Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through my contact form.

REUL Bill Second Update

Author Punch Source Wikimedia Commons

 

Jane Lambert

I have already discussed this bill in Retained EU Law (Revocation and Reform) Bill on 26 Oct 2022 and REUL Bill First Update on 6 Dec 2022,  It has now completed its passage through the House of Commons and will proceed to the House of Lords tomorrow.  The latest version of the bill can be read here.

Ahead of its second reading in the Lords, the Secondary Legislation Scrutiny Committee, which considers the policy effects of statutory instruments and other types of secondary legislation, has published Losing Control?: The Implications for Parliament of the retained EU Law (Revocation and Reform) Bill.  The members of the Committee (Baroness Bakewell of Hardington Mandeville, The Earl of Lindsay, Lord De Mauley, Lord Lisvane, Lord German, Lord Powell of Bayswater, Viscount Hanworth, Lord Rowlands. Lord Hodgson of Astley Abbotts, Baroness Watkins of Tavistock and Lord Hutton of Furness) have done so because they believe that the proposed legislation is an extreme example of a skeleton bill which would lead to a significant shift of power from Parliament to ministers.  

As their mandate is to scrutinize secondary legislation it is unusual for the Committee to report on primary legislation.  They explain that they have taken that exceptional step because they have power to consider “general matters relating to the effective scrutiny of secondary legislation” which this bill is likely to affect.

Their concern with the sunset clauses is that important legislation may disappear inadvertently from the statute book. They fear that ministers and their officials may simply overlook important provisions.  They add that there is no machinery for MPs to intervene on behalf of concerned constituents.  As to the proposed power of ministers to amend EU regulations and directives by statutory instrument, they call for an amendment of the bill to enable Parliament as a whole to amend important legislative instruments.  They call for explanatory memoranda to be produced on every piece of legislation likely to lapse or be modified.

The Bar Council, which had previously briefed peers on the bill, welcomes the Committee's report. In his press release Retained EU Law Bill will damage UK’s reputation, says Bar Council of 3 Feb 2023  the Chair of the Bar warned that "the bill in its present form, will damage the UK’s reputation for regulatory stability, predictability, and competence on which growth-promoting investment in critical sectors of our economy depends."

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

REUL Bill First Update

Intellectual Property Office

Crown Copyrights  Open Government Licence

 

Jane Lambert

In Retained EU Law (Revocation and Reform) Bill (26 Oct 2022), I mentioned the introduction and second reading of that bill.  In that article, I wrote that the purpose of the bill s to enable the government to remove the special features of retained European Union law ("REUL") from the English and Welsh, Scottish and Northern Irish legal systems by the end of 2023.  I added that the bill if passed was likely to affect intellectual property law in the United Kingdom because much of that law implements EU legislation and case law.  For that reason, I offered to follow the progress of the bill and its application to intellectual property law.

According to the UK Parliament's website, the bill has completed the report stage and is now at the report stage.  A copy of the bill as amended in committee can be found here.   Anyone interested in what was said in Parliament about the bill can consult Hansard here.

On 29 Nov 2022, the Intellectual Property Office published updated guidance on the bill.   It consists of a list of retained EU law, as defined in s. 6 (7) of the European Union (Withdrawal) Act 2018.  Such law relates to intellectual property within the policy remit of the IPO and does not address issues that lie outside such as plant varieties or rights arising at common law.  The list covers copyrights, designs, patents, trade marks and enforcement.  Readers will see that it is quite long enough.

I shall continue to monitor the progress of the bill and report any other useful materials on the topic that come to my attention.  In the meantime, anyone who is interested in the topic may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Retained EU Law (Revocation and Reform) Bill

 

Jane Lambert

The second reading of the Retained EI Law (Revocation and Reform) Bill took place on St Crispin's Day,  Ironically it was the day on which the bill's sponsor, Mr Jacob Rees-Mogg MP, resigned his portfolio as Business Secretary.  A copy of Mr Rees-Mogg's letter of resignation appears on his website.

According to its explanatory notes, the purpose of the bill is to enable the government to remove the special features of retained European Union law ("REUL") in the English and Welsh, Scottish and Northern Irish legal systems by the end of 2023.  REUL is not defined in the bill but it refers to the regulations and directives of the European Council and Commission and the judgments of the Court of Justice of the European Law which were retained by ss. 2 to 7 of the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020.   This bill, if passed, is likely to affect intellectual property law in the United Kingdom because much of that law implements EU legislation and case law.

Paea 3 of the explanatory notes states that the bill will achieve its objective by:

(a) repealing or assimilating REUL, within a defined scope, by the end of 2023 

(b) Repealing the principle of supremacy of EU law from UK law by the end of 2023; 

(c) Facilitating domestic courts departing from retained case law; 

(d) Providing a mechanism for UK government and devolved administration law officers to intervene in cases regarding retained case law, or refer them to an appeal court, where relevant; 

(e) Repealing directly effective EU law rights and obligations in UK law by the end of 2023; 

(f) Abolishing general principles of EU law in UK law by the end of 2023; 

(g) Establishing a new priority rule requiring retained direct EU legislation (RDEUL) to be interpreted and applied consistently with domestic legislation; 

(h) Downgrading the status of RDEUL for the purpose of amending it more easily;

(i) Creating a suite of powers that allow REUL to be revoked or replaced, restated or updated and removed or amended to reduce burdens.

The bill as introduced consists of 23 clauses and 3 schedules.

I shall follow the progress of the bill and its application to intellectual property law.  Anyone wishing to discuss this topic may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament

Author Cezary p  Licence CC BY-SA 2/5  Source Wikipedia Bundestag

 

Jane Lambert

In German Constitutional Court's Decision in Re Unified Patent Court Agreement  22 March 2020 NIPC Law, I commented on the Constitutional Court's decision in  Re Unified Patent Court Agreement 2 BvR 739/17 Order of 13 Feb 2020 (20 March 2020) that the bill to ratify German accession to ratify the Unified Patent Court Agreement was unconstitutional.  I wrote:

"If the problem was the lack of a two-thirds majority there is nothing to prevent the German Government from introducing another ratification bill and making sure that there are enough parliamentarians in each of the houses of Parliament to vote the measure through."

That is what appears to have happened.  A new ratification bill was passed by a quorate lower house with the necessary two-thirds majority (see UPC – Progress on German ratification 26 Nov 2020 UPC website). The bill now proceeds to the Upper House which will vote on the proposed legislation on 18 Dec 2020.

As Mr Boris Johnson MP in his capacity as Foreign Secretary had deposited the instrument of ratification on World Intellectual Property Day 2018 (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day 26 April 2018 NIPC News) we might have expected the Unified Patent Court to open for business in 2021,  Unfortunately, there are likely to be further delays as a result of the UK government's volte-face under Mr Johnson's premiership (see Volte-Face on the Unified Patent Court Agreement  29 Feb 2020 NIPC News).   A withdrawal notification of ratification was deposited with the Council Secretariat on 20 July 2020.  On the same day the Minister for Science, Research and Innovation:

"UNIFIED PATENT COURT

I am tabling this statement for the benefit of Honourable and Right Honourable Members to bring to their attention the UK’s withdrawal from the Unified Patent Court system.

Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in respect of the United Kingdom of Great Britain and Northern Ireland and the Isle of Man, and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively “the Agreements”).

In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.

The Agreements have not yet entered into force. However, in order to ensure clarity regarding the United Kingdom’s status in respect of the Agreements and to facilitate their orderly entry into force for other States without the participation of the United Kingdom, the United Kingdom has chosen to withdraw its ratification of the Agreements at this time. The United Kingdom considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the Unified Patent Court system".

Although this is the end of the road for British participation in the project unless and until the United Kingdom (or successor states of the UK) rejoin the European Union it need not be the end of the project.  

The UPC's Preparatory Committee meeting held on 10 Sep 2020 reported calls from European industry for the speedy implementation of the Agreement.  That includes British businesses that intend to continue to trade in the EU after the end of the transition period whether through subsidiaries, joint ventures or otherwise.  Until this year, British governments have always believed the establishment of an EEC, EU or unified patent to be in our national interests and much of British industry still does.  It is, therefore, gratifying to note that "good progress was made and the Committee is confident that pragmatic and legally sound solutions will be found that will enable the unitary patent system to be functional in a near future" (see Report of the Preparatory Committee meeting held on 10 September 2020 UPC website).

For that reason, I shall continue to monitor progress on the UPC even after the end of the transition period.   I shall also be glad to advise on points of law relating to European patents or the Unified Patent Agreement. As our chambers already have an Irish silk whose practice includes IP and technology law we can already provide representation in the UPC whenever it comes into being.   As soon as the UPC announces opens its doors, I shall also seek call to the Irish bar.   Anyone wishing to discuss this article or the UPC and unitary patent generally may call me on +44 (0)2- 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing May 2020

By ClemRutter, Rochester, Kent. - Own work,
CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=2163988

Jane Lambert

A lot happened in May.  Mr David Frost presented British proposals for a comprehensive free trade agreement with accompanying agreements on various other matters (see Jane Lambert Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020). Michel Barnier answered David Frost's shrill and petulant covering letter from David  Frost of 19 May 2020 with a firm but measured and courteous response the very next day. The British government resumed its negotiations with the USA for a free trade agreement on 5 May 2020 and published its proposals for a free trade agreement with Janan.

The British proposals are structured very differently from the draft agreement of 18 March 2020 but they are a substantial set of documents and contain many provisions upon which the Commission ought to be able to agree.  It is said that Mr Frost's letter irritated many on the continent but they will be aware that Mr Frost and his political masters have an audience of Conservative backbenchers and a Eurosceptic press.  Another round of negotiations begins today on an agreed agenda.  For the first time since negotiations began, both sides' proposals have been exchanged.

If there is to be an extension to the 11th-month transition or implementation period it has to be agreed in June. A bill to extend that period has been introduced into the House of Commons by Sir Edward Davey, acting leader of the Liberal Democrats. It is supported by the Scottish National Party, Plaid Cymru, the Green Party, the Alliance Party and the Social Democratic and Labour Party in Northern Ireland but not the Labour Party and it has been welcomed by Monsieur Barnier in a letter dated  25 May 2020 (a copy of which can be downloaded from this blog's EU negotiations page.  Labour's reticence has surprised some but it can probably be explained by the fact that he party under its new leader is doing rather well in the polls and sees no advantage in picking fights that it can't win,

Many commentators are gloomy about the outcome of the new relationship negotiations but I am not so sure.  A lot of work has been done on the British draft agreements which would have been pointless had they been intended to fail. The UK needs continued access to the single market more than its negotiators concede because there is no obvious alternative. With the highest number of coronavirus deaths in the world and record unemployment, the US economy is in an even worse mess than ours.  It now has race riots in its major cities with which to contend.  Relations with the other economic superpower have deteriorated still further with the Chinese government's clampdown on Hong Kong.

Anyone wishing to discuss this article or the new relationship negotiations, in general, should call 020 3819 8725 while lockdown continues or message me through my contact form