Retained EU law in the UK after Brexit

The European Union (Withdrawal) Act 2018 (EUWA) provides a new constitutional framework for the continuity of ‘retained EU law’ in the UK, replacing the EU treaties that had until that point applied in the UK. Thousands of amendments to that retained EU law also entered into force at the same time.

What is retained EU law?

Retained EU law is essentially a snapshot of EU law as it applied in the UK on 31 December 2020, which was cut and pasted into our domestic legal system. Sections 2 to 4 of EUWA establish three categories of retained EU law:

• domestic law which implemented or related to former EU obligations. One example is the UK’s Working Time Regulations, which implemented the EU Working Time Directive;
• EU legislation which was directly applicable in the UK without implementing legislation. One example is the EU’s General Data Protection Regulation;
• ·other rights and principles in EU law that had direct effect in the UK. One example is the right not to be discriminated on grounds of nationality, which is a right provided for in the Treaty on the Functioning of the EU.

Officially, this amounts to 150,000 pieces of EU legislation, though it is thought that only around 3,000 of them have a practical impact in the UK. The challenge of identifying the relevant law is complicated. This is because there is no official record of which EU treaty rights were incorporated into UK law – instead, an assessment of each EU law right is required to determine if it meets the EUWA criteria, followed by research to determine if it has been amended or revoked by post-Brexit domestic legislation.

Much EU legislation falls outside these three categories, and so does not apply in the UK. The most notable type is EU directives, since they were not directly applicable in the UK. However, domestic legislation implementing them would fall under the first category, and specific rights in the directives recognised by case law as having direct effect would fall under the third.

Other remnants of EU law in the UK

Although not falling within the definition of retained EU law, many aspects of the UK-EU Brexit deals are directly enforceable in the UK legal system in the same way that EU law was previously.

Section 7A of EUWA provides for the UK-EU Withdrawal Agreement, including the Northern Ireland Protocol, to have direct effect in the UK legal system where the agreement requires this.

Section 29 of the European Union (Future Relationship) Act 2020 similarly makes a general modification to all existing domestic law, so far as necessary to comply with the UK-EU Trade and Cooperation Agreement.

The question of how many provisions of the Brexit deals can actually be enforced in the UK courts under these general provisions is a grey area. However, it does mean in principle that, if domestic laws or administrative actions breach the agreements, then businesses and individuals can have them disapplied by the UK courts.

Amendments to retained EU law

From 2018 to 2020 the UK government made more than 600 pieces of domestic secondary legislation, making around 80,000 amendments to retained EU law. For the most part, these were technical, to ensure that the retained EU law would be clear and operable when applied purely in a UK domestic context. However, there were also substantive changes, and some pieces of EU legislation were revoked entirely. So it is important to check an up-to-date version of retained EU law taking account of any amendments, before relying on it.

These domestic amendments are also – in most cases – retained EU law, and therefore subject to the EUWA framework. By contrast, any post-Brexit amendments made by the EU to its legislation after 31 December 2020 are not incorporated into UK law under EUWA. Therefore, whilst most retained EU law in the UK may initially be close or even identical to the EU’s own ‘classic’ EU law, the two will inevitably diverge over time as they evolve independently of one another, except in those areas where the UK-EU Brexit deal restricts divergence.

Enforcement and litigation issues

When retained EU law is enforced and litigated, the differences between EUWA and the EU treaties are highlighted in a number of ways.

The EU principle of direct effect, which requires courts to recognise and enforce the rights provided for in the EU treaties, is only preserved in part through the provisions of section 5 and Schedule 1 EUWA. To the extent that an individual could have relied before Brexit on directly effective EU law to set aside inadequate pre-Brexit domestic law in the UK, they can continue to do so, subject to a number of exceptions. However, the UK’s post-Brexit domestic law takes precedence, and cannot be set aside by any directly effective EU law.

In addition, neither the EU Charter of Fundamental Rights nor the general principles of EU law established in the case law of the Court of Justice of the EU (CJEU) can be relied upon in litigation to set aside any domestic law, whether pre- or post-Brexit. Would-be litigants are also now barred from making so-called claims for ‘Francovich’ damages – compensation for alleged breaches by the UK government of EU law.

For the most part, section 6 EUWA provides for pre-Brexit EU case law to remain binding on the UK courts when retained EU law is litigated, while post-Brexit EU case law is not binding. However, there are significant concerns about the legal uncertaintyof how the UK courts will apply these provisions. Under section 6, courts at the level of the Court of Appeal in England and Wales or UK Supreme Court may overturn binding pre-Brexit EU case law if they consider it ‘right to do so’; and in practice, all UK courts are likely to be heavily influenced by non-binding post-Brexit EU case law where they are interpreting the same piece of legislation.

Finally, where litigation turns in part on one of those 80,000 amendments made to retained EU law by secondary legislation, there may be a question as to whether the amendment was validly made and is enforceable.