This post was contributed by Professor James Devenney, Module Convenor for Commercial law.
Following the UK’s ‘Brexit Referendum’ in 2016, the UK Government indicated that, in the short term, much of the existing consumer law of EU origin would be retained. This was predominantly framed as a pragmatic solution for business but it might equally have been framed around protecting consumer confidence. This was given effect to by, for example, the European Union (Withdrawal) Act 2018. There were, however, notable exceptions including:
- Regulation (EU) No 524/2013 on consumer online dispute resolution (ODR) which was repealed in the UK. That Regulation established a free multilingual European Online Dispute Resolution Platform. Whilst recognising the importance of effective dispute resolution for consumer rights and confidence, Regulation (EU) No 524/2013 was not well used with only approximately 200 cases across the EU enabled by it per year; and is subject to EU proposals for reform.
- The 2006 and the 2017 cross-border consumer protection co-operation regulations were also repealed. The context for these Regulations can be found in Recitals (2) and (3) of Regulation (EC) No 2006/2004: some consumer issues transcend national borders and the inability to effectively deal with such issues undermines consumer confidence and distorts competition between domestic and cross-border traders. Given, for example, the way the digital economy transcends national borders, the importance of international co-operation had previously been stressed by the Department for Business, Innovation and Skills. Therefore, the loss of these Regulations in the UK was regrettable, particularly against the backdrop of increasingly strained relations between the UK and EU.
Thereafter, in January 2022, the then Prime Minister, Boris Johnson, announced an intention to introduce a ‘Brexit Freedoms Bill’.
“Many EU laws kept on after Brexit were agreed as a messy compromise between 28 different EU member states and often did not reflect the UK’s own priorities or objectives…Having regained our independence, we can now ensure that our regulations are tailor-made to the UK’s own needs.”
On 22nd September 2022, the Retained EU Law (Revocation and Reform) Bill 2022 was introduced into Parliament. The Bill contained a ‘sunset’ provision for EU-derived subordinate legislation; meaning that such legislation would be revoked at the end of 2023 unless saving regulations were made in respect of a particular piece of EU legislation. In relation to consumer law this caused concern, particularly around timeframes, for bodies such as the Consumers’ Association, the Chartered Institute of Trading Standards and Consumer Scotland.
Ultimately the Retained EU Law (Revocation and Reform) Act 2023 was much more modest than originally proposed and it did not significantly affect core EU-derived consumer law which, along with other retained EU Law, became known as assimilated law. But that was not the end of the story. The Digital Markets, Competition and Consumers Act 2024 prospectively repeals a cornerstone of core consumer law (the Consumer Protection from Unfair Trading Regulations 2008) only to resurrect them, with some tweaks, in the Digital Markets, Competition and Consumers Act 2024 itself! A similar pattern can also be seen in relation to ADR notification duties.
What about future EU consumer law initiatives? Although the UK generally will not be required to follow future EU consumer laws, in 2018 there was a proposal that the UK would voluntarily align with some future EU laws, but that proved politically unpalatable. This summer there was a change of government in the UK. In the incoming Labour Government’s Manifesto (Change) there were general commitments (such as the Green Prosperity Plan) which would benefit consumers as well as specific consumer law commitments in relation to energy market regulation and ticket touting. There was a focus on the benefits of trade for consumers:
“Openness to trade allows our firms to grow and delivers greater choice and value for consumers. Rather than prioritizing insubstantial agreements which do not bring meaningful benefits to the UK, Labour will seek targeted trade agreements aligned with our industrial strategy and economic strengths, to bring prosperity to communities across England, Scotland, Wales, and Northern Ireland.”
Central to this objective was rebuilding the UK’s relationship with the EU. Labour made it clear that this would not mean rejoining the EU, the single market or the customs union; nor a return to the freedom of movement. However, it would “…mean tearing down unnecessary barriers to trade”. Interestingly, in the following King’s Speech there was a move towards voluntary alignment in respect of a Product Safety and Metrology Bill.