The UK government said on Tuesday, January 3, that it is ploughing ahead with plans to repeal or reform any EU-era laws – including around sixty pieces of IP legislation – by the end of this year despite rumours of a deadline extension.
A spokesperson for the Department for Business, Energy and Industrial Strategy, which is responsible for the bill, said: “The programme to review, revoke and reform retained EU law is underway and there are no plans to change the sunset deadline for any government departments.”
In the last week, reports in national newspapers suggested that some government ministers are sympathetic to a delay.
The bill is expected to reach the House of Lords, the upper chamber of the UK’s parliament, in February where it could face further opposition.
The draft Retained EU Law (Revocation and Reform) Bill 2022 was published in September last year. It set out plans to repeal all retained EU law by December 31, 2023, unless directly converted into national law or tweaked.
According to the reports this week, some departments are keen for the deadline to be extended until 2026. There is already a provision in the bill allowing for an extended deadline of 2026, but the intention was for this to only apply to the most complex laws.
At the time that the bill was first published, practitioners said it could spell a recipe for disaster.
Of the thousands of laws implemented during the UK’s membership of the EU, at least sixty were related to IP. Vast swathes of the UK’s trademark, designs, and trade secrets regime originate from EU statutes.
Despite the government’s insistence that it will stick to this year’s deadline, IP practitioners believe more time is crucial.
Joel Smith, partner at Hogan Lovells in London, said the government will find it extremely challenging to make sound decisions about which laws should be removed without proper consultation of stakeholders.
Annsley Merelle Ward, partner at WilmerHale in London, said an extension seems inevitable.
She added that it is still not clear what is and is not caught by the bill, particularly in relation to the treatment of case law.
“Doing that in the original time frame does not seem practical or wise given the immediate impact on business. Similarly, whether there are opportunities to improve areas of IP protection, for example in respect of SPC protection, is something that also warrants review.”
But a rushed job is only a gift to litigators, not business, she added.
Ward said the tight deadline in the bill is politically motivated.
“Delivering a ‘we got Brexit done’ message to an increasingly agitated and economically pressured electorate and a revolving door of prime ministers may have informed the arbitrarily short deadline.”
She added that the deadline was never realistic given the amount of work and hours required to analyse whether legislation is EU-derived and caught by the bill.
Smith noted that there are some areas of IP where the government has previously indicated that it may want to diverge from the EU, such as the interplay between copyright and designs and liability of hosting providers.
“All of these areas would require careful scrutiny and engagement with IP professionals, business and others,” he added.
The bill is currently in the report stage and there will then be a third reading in the House of Commons.
