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.

The Alleged Benefits of Brexit

Author Les Chatfield Licence CC BY-SA 2.0 Source Wikimedia Commons

 

Jane Lambert

On 31 Jan 2022, the Cabinet Office published a document entitled  The Benefits of Brexit: How the UK is taking advantage of leaving the EU.   It consists of 105 pages including the front cover and back page.  There is a "Foreword by the Prime Minister", an "Introduction", sections headed "Our Achievements so far", "The Best Regulated Economy in the World" and "A World of Future Opportunities", and a "Conclusion."

When governments enter a treaty each of them accepts restrictions. When the treaty comes to an end so do the restrictions.  Whether or not a release from restrictions confers a benefit will depend on how it is to be used.  Even if it does confer a benefit it will come at a cost because the benefits that had been conferred by the treaty will also be lost.  The ending of the treaty will be a net benefit only if the benefits resulting from the release outweighs those costs.

Anyone expecting the above document to quantify the benefits of leaving the EU and weighing them against the costs will be disappointed because it is a polemic and not an analysis.  Its authors are not identified but the "Introduction" states that "many of the benefits" and future work set out in that document build on the work and ideas of Sir Iain Duncan Smith MP, Theresa Villiers MP and George Freeman MP and their Taskforce on Innovation, Growth and Regulatory Reform.  It adds that there have been contributions from numerous business groups and representative organisations who have met the Prime Minister and other Ministers.  

This section headed "Our Achievements So Far" consists of 14 pages divided into the following subsections:

• Taking Back Control (page 5 to 7);
• Our Money and Levelling Up (pages 8 and 9);
• Backing our Business (page 10 to 12);
• Support for People and Families (pages 13 and 14);
• Protecting our Environment (page 15);
• Enhancing Animal Welfare Standards (page 16);  and
• Global Britain (page 17 to 19).

The alleged achievements of "Taking Back Control" include "ending free movement", "making it tougher for EU criminals to enter the UK", reintroducing blue passports and "reviewing the EU ban on imperial markings and sales".  The authors explain that that is because "imperial units like pounds and ounces are widely valued in the UK and are a core part of many people’s British identity." "Our Money and Levelling Up" includes stopping contributions to the EU, spending more money on the NHS, subsidizing British businesses, changing the rules on public procurement to make it easier for British businesses to win public sector contracts and setting up free ports.   "Support for People and Families" includes raising the limit for contactless payments to £100, removing the requirement for vehicle owners to insure against accidents on private land, replacing the Erasmus scheme with the Turing scheme and relaxing the rules on cannabis for medical use.   The rest of the section is in a similar vein. 

"The Best Regulated Economy in the World" section is 13 pages long divided as follows:

• "Our regulatory system is recognised globally. We want to raise the bar even higher as we embrace our new found freedoms outside of the EU and position ourselves as a global hub for innovation and a science and technology superpower" (page 20);
• Making the most of our regulatory freedoms (page 21);
• Our principles for regulation (pages 22 and 23);
• A sovereign approach (pages 24 and 25); 
• Leading from the front (page 26);
• Proportionality (page 27);
• Recognizing what works (page 28);
• Setting high standards at home and globally (page 29);
• Retained EU law (page 30);
• Accelerating and prioritizing refim (page 31); and 
• Amending retained EU law (pages 32 and 33),

Except for the passages on repealing or amending retained EU law for which it appears that primary legislation will be required there is very little detail on how UK regulation will improve on or even diverge from the EU's.

The most sunstantial section is headed "A World of Opportunities".  That runs from page 34 to 100 and cosnsists of the following subsections:

• A world of opportunities (pages 34 and 35);
• Science Data & Technology (pages 36 and 37);
• Quantum Technologies (pages 38 and 39);
• Digital Economy (pages 40 and 41);
• Digital Technology in Trade (pages 42 and 43);
• Online Safety (page 44);
• Cyner Security & Product Safety (page 45);
• Life Sciences (pages 46 and 47);
• Business & Industry (pages 48 and 49);
• Professional Business Services (pages 50 and 51);
• Legal Services (pages 52 and 53);
• Automotive (pages 54 and 55);
• Aerospece (pages 56 and 57);
• Retail and Consumer Goods (pages 58 and 59);
• Hospitality (pages 60 and 61);
• Food & Drink (pages 62 and 63);
• Culture (page 64);
• Infrastructure & Levelling Up (pages 65 and 66);
• Aviation (pages 67 and 68);
• Space (pages 60 and 70);
• Rail (pages 71 and 72);
• Roads (pages 73 and 74);
• Maritime (page 75);
• Nuclear (pages 76 and 77);
• Housing & Construction (page 78);
• Local Government (page 79);
• Education (pages 80 and 81);
• Health (pages 82 and 83);
• Climate, the Environment & Agriculture (pages 84 and 85);
• The Environment (pages 86 and 87);
• Farming (pages 88 and 89);
• Fisheries & Marine Management (pages 90 and 91);
• Animal Welfare (pages 92 and 93);
• Glonal Britain (pages 94 and 95);
• Migration (pages 96 and 97);
• International Trade (page 98); and
• International Relations and Diplomacy (pages 99 and 100). 

Part of this programme would not have been possible without brexit. Changes to data protection law that may not be compatible with the General Data Protection Regulation. Subsidies and investments in various sectors of the economy might have been prohibited as state aid. Member states would not have been able to negotiate free trade agreements with third countries. There is not much else that would have been incompatible with EU membership.  Where there are changes such as the exclusion of English and Welsh lawyers from the Court of Justice, General Court and the Unified Patent Courts and the withdrawal of the UK from the Brussels and Lugano Conventions are hard to spin as benefits. Possible accession to the Singapore Convention on Mediation and the recognition of English legal qualifications in Australia and New Zealand will not begin to make up for the loss of the right to practise in the EU.

The "Conclusion" is made up exclusively of platitudes.   Anyone wishing to discuss this article or the issues arising in it may call me on 020 7404 5252 during office hours or send me a message through my contact form.