Compliance: to avoid a major regulatory pothole, businesses need to engage

Draft legislation before Parliament, if adopted, will revoke or sunset a large proportion of the currently identified 2,400 pieces of retained EU law (REUL) by the end of 2023. It is recognised there is likely to be more REUL that will be added to the list.

Businesses need to know what changes will be made so they can avoid unnecessary compliance costs for rules that no longer apply. Businesses also need to understand the consequences, as regards exports of goods or services to the EU, where EU regulatory rules are no longer being followed.

The government has produced a website to help businesses understand the scale of the work required and the priorities of government UK Government - Retained EU Law Dashboard | Tableau Public. The burden on the business community to undertake this work cannot be underestimated. For example, the Department for Business, Energy and Industrial Strategy has so far identified 256 examples of REUL that have had no substantive changes made to them as a result of Brexit and so need to be reviewed fully. Of those, for example, 42 relate to intellectual property and 84 concern the manufacturing sector. Of the latter, 14 relate to eco-labelling of various products. Businesses will likely need to rely on trade associations and similar bodies to support them on this subject.

One important challenge the draft legislation will seek to address is how UK courts will interpret the 'replacement' UK law. The original EU law may well have been interpreted by the European Court of Justice (ECJ). UK courts are not bound by the rulings of the ECJ because it is a foreign court. Yet to not be strongly influenced by such EU rulings on 'copy paste' UK law seems to be both a judicial inefficiency and unnecessarily creating uncertainty when there had been clarity.