UK’s ‘Brexit Bonfire’: Experts explore potential implications of Retained EU Law Bill

First touted by former Prime Minister Boris Johnson at the start of 2022​, the Retained EU Law (Revocation and Reform) Bill – which has also been called the Brexit Bonfire or the Brexit Freedoms Bill by some – was introduced to Parliament on 22nd of September.

The Bill aims to end the special status of all EU-derived legislation by the end of December 2023, at which point any remaining retained laws will either be repealed or assimilated in UK domestic law. 

“If and when this becomes law it will be the one of the biggest changes in regulation in the UK, perhaps ever,”​ stated Dominic Watkins, Partner and Global Lead Consumer Sector at DWF, in a blog posting on LinkedIn​.  “Why? It is the legislation that gives effect to Liz Truss' promise to banish EU retained law from the end of 2023, but goes much further than that and also impacts anything that is EU derived.”​

“Removing the retained law alone would be seismic enough as that removes all of the EU law that has been the backbone of food law, and the government's own tracker suggests that there are 2,400 pieces of regulation across 21 government departments in this space: 570 owned by Defra [which is responsible for food labelling, among many other things],” ​added Watkins.

“This category just relates to regulations and decisions, but it covers all of the central laws impacting food safety for instance. But, also far more than just that. For consumer sector businesses gone would be the General Food Regulation, the additives regime and all of the laws around it, novel foods, health claims, chemicals regulations like CLP and REACH, the list goes on. But, it is the removal of the EU-derived subordinate legislation that takes this to a new level.  That potentially removes domestic regulations that have implemented EU Directives over the years.  Unless they are saved, this will remove another huge swath of regulation that is already domestic and affects topics like health and safety, animal by products amongst many others.  There is in the region of 6000 domestic laws that will need to be sifted through to determine which ones still apply and should be saved.  ”​

Speaking to NutraIngredients, Watkins said: “Are there things in EU law that need reform? Sure. Are there things we’d like to see removed or improved? Of course. But at a time of limited resources, it feels unnecessary to deal with everything at once and especially at this time. Even if you shifted the deadline to 2026, that’s still not a huge amount of time to get this done.”​

“This could be an opportunity to polish the rough edges of EU law, but if we rip it up and start again then we create a gaping chasm between Great Britain and the European Union, and that’s not great.” ​

A huge task​

“By the end of 2023, all retained EU legislation will be gone, unless a minister makes regulations to extend the deadline until 2026, or you enact applicable legislation,” ​Brian Kelly, a partner in the European Life Sciences group at Covington & Burling in London, told us.

“Regulatory departments, the relevant authorities, will have to switch into gear to look at all aspects of this,” ​added Kelly. “They will have to convince their ministers as to why a piece of EU legislation has to stay in place. Also important to note that you’re not supposed to amend it if the amendment creates more administrative burden.​

“It’s going to be a huge task.”​

For the Food Standards Agency (FSA), this affects over 100 pieces of legislation related to food hygiene and safety, in addition to over 30 pieces of legislation relating to food composition and labelling for which the FSA has responsibility in Wales.

In a recent FSA Board meeting​, Emily Miles, FSA Chief Executive, said that there is significant pressure to do that work as soon as possible but noted there would inevitably be a ‘trade off’ between speed and reform. 

“It’s clear we cannot simply sunset the laws for which we are responsible without risking both public health and our ability to trade internationally, and I’m sure this is not the government’s intention with these plans,” ​said Susan Jebb, FSA Chair. “It’s also important for us to remember that individual pieces of law are intertwined in a complex system which links to legislation held by other government departments.​

“I am keen to consider whether we can create a new Food and Feed Bill to replace much of the EU Law. I will prioritise engaging with Ministers to discuss our pre-existing plans for reform and how they may be incorporated as part of this process and much of this will depend on their appetite for speed versus reform. I am also very conscious of our responsibilities to the devolved governments, and I will be looking to meet with them too.”​

The devolved governments could complicate the landscape across the United Kingdom. This could lead to internal market issues and different administrative approaches between England and Scotland, for example.

Opportunities​

The easiest things to do would be to restate the laws, said Kelly. “Take everything’s that there and re-issue it.”​

“This could be subtle or slight adjustments, or it could be something significant,” ​said Watkins. “It may end up being a storm in a teacup.”​

Kelly and Watkins agreed that there are opportunities to look at some of the key topics that are important to the food supplements and functional food categories.

“This is a huge opportunity for people to lobby hard,”​ said Kelly.  “For example, probiotics are ripe for discussion.”​

As regular readers of NutraIngredients will be aware, the probiotics industry has struggled with the European position that the term itself is a health claim (defined by FAO/WHO as “live microorganisms which when administered in adequate amounts confer a health benefit on the host”​). Several EU countries have moved to allow use of the term, such as Spain, Denmark, Italy, and the Czech Republic.

Novel food could also be revised. “Europe is becoming a tough market to crack for novel ingredients,”​ said Kelly. The US GRAS-based system, which is an involved system, could be something to look at for new dietary ingredients, he said.

A long way to go…​

There’s still a long way to go with this. The Bill has only had its first reading in Parliament. To follow are a second reading, then committee meetings, third reading, and on. “This will take a period of time to get through that be measured in months,”​ said Watkins. But every passing month inches Britain closer to that December 2023 deadline. “The best case is that [assuming it passes] you are 12 months out [from the end of 2023].”​

“It is going to evolve and the language may change, but business will be looking for stability,” ​he said.