Learning Outcomes
After reading this article, you will be able to identify the main categories of retained EU law, explain its legal status within the UK constitutional framework, and apply the principles governing its interpretation by UK courts post-Brexit. You will also be able to distinguish between the different types of retained EU law and understand how UK courts approach CJEU case law when interpreting these provisions.
SQE1 Syllabus
For SQE1, you are required to understand the constitutional and practical significance of retained EU law in the UK. Focus your revision on:
- the categories and sources of retained EU law
- the legal status and hierarchy of retained EU law within the UK legal system
- the principles and methods used by UK courts to interpret retained EU law
- the relationship between retained EU law, domestic legislation, and parliamentary sovereignty
- the role of pre-Brexit CJEU case law and the ability of UK courts to depart from it
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which of the following is NOT a category of retained EU law under the European Union (Withdrawal) Act 2018?
- EU-derived domestic legislation
- Direct EU legislation
- Rights arising under s 2(1) ECA 1972
- Post-Brexit EU regulations
-
Which UK courts have the power to depart from retained EU case law?
- All UK courts
- Only the Supreme Court and Court of Appeal (or equivalent)
- Only the High Court
- Only the Supreme Court
-
If a conflict arises between retained EU law and a UK Act of Parliament passed after 31 December 2020, which prevails?
- Retained EU law
- The later Act of Parliament
- Whichever was enacted first
- The CJEU decides
Introduction
The UK's withdrawal from the European Union required the preservation of large parts of EU law to avoid legal gaps and uncertainty. The European Union (Withdrawal) Act 2018 (EUWA) created the concept of "retained EU law," ensuring continuity by converting and preserving certain EU rules within UK domestic law. Understanding the categories, status, and interpretation of retained EU law is essential for SQE1, as it affects the relationship between EU-derived rules, domestic legislation, and constitutional principles such as parliamentary sovereignty.
Categories of Retained EU Law
Retained EU law is not a single type of law but a collection of legal rules derived from different EU sources, each with distinct features and implications.
EU-derived Domestic Legislation
This category includes UK primary and secondary legislation enacted to implement EU obligations before the end of the Brexit transition period. Examples are statutory instruments made under the European Communities Act 1972 to give effect to EU directives, such as the Working Time Regulations 1998. Some Acts of Parliament, like parts of the Equality Act 2010, also fall within this category if they were enacted to implement EU law.
Key Term: EU-derived domestic legislation UK statutes and statutory instruments made to implement EU law before Brexit, now preserved as part of retained EU law.
Direct EU Legislation
Direct EU legislation refers mainly to EU regulations and certain EU decisions that were directly applicable in the UK before Brexit. These rules were automatically binding and did not require domestic implementation. The EUWA converts these into UK law as "retained direct EU legislation," ensuring their continued effect unless amended or repealed.
Key Term: Direct EU legislation EU regulations and decisions that applied directly in the UK before Brexit, now preserved as retained EU law.
Rights Arising Under Section 2(1) ECA 1972
Some directly effective rights from EU treaties and directives, recognized by UK or EU courts before Brexit, are preserved as retained EU law. This includes, for example, the right to equal pay under Article 157 TFEU. These rights are retained only if they were recognized as directly effective before the end of the transition period.
Key Term: Rights arising under s 2(1) ECA 1972 Directly effective EU treaty or directive rights recognized before Brexit, now preserved as retained EU law.
Retained EU Case Law and General Principles
UK courts must continue to apply pre-Brexit decisions of the Court of Justice of the European Union (CJEU) and general principles of EU law when interpreting retained EU law, unless a higher UK court decides to depart from them.
Key Term: Retained EU case law CJEU and UK court decisions on EU law made before Brexit, which remain binding for interpreting retained EU law.
Key Term: General principles of EU law Fundamental principles developed by the CJEU (e.g., proportionality, equality) that guide the interpretation of retained EU law if recognized before Brexit.
Status of Retained EU Law
Retained EU law occupies a unique position in the UK legal hierarchy. Its status depends on its source and whether it has been modified after Brexit.
Legal Hierarchy and Supremacy
Retained EU law generally prevails over UK legislation enacted before the end of the transition period (31 December 2020) if there is a conflict. However, for any UK Act of Parliament passed after that date, the new Act takes precedence, reflecting the principle of parliamentary sovereignty.
Key Term: Supremacy of retained EU law The rule that retained EU law prevails over earlier UK law, but not over Acts of Parliament passed after Brexit.
Amendment and Repeal
Parliament and, where relevant, devolved legislatures have the power to amend or repeal retained EU law. Some retained EU law is treated as primary legislation (e.g., retained direct principal EU legislation), while other parts are treated as secondary legislation, affecting how they can be changed and challenged.
Interaction with Domestic Law
Retained EU law is interpreted in its original context, considering pre-Brexit CJEU case law and general principles. However, UK courts are not bound by post-Brexit CJEU decisions, though they may treat them as persuasive.
Interpretation of Retained EU Law
UK courts must interpret retained EU law in line with its original purpose and pre-Brexit CJEU case law, unless a higher UK court decides to depart from that case law.
The Role of Pre-Brexit CJEU Decisions
Decisions of the CJEU made before Brexit are binding when interpreting retained EU law. The Supreme Court and Court of Appeal (or equivalent) can depart from these decisions if they consider it right to do so, applying the same test as when departing from their own previous decisions.
The Role of Post-Brexit CJEU Decisions
UK courts may consider post-Brexit CJEU decisions as persuasive but are not bound to follow them.
Indirect Effect
UK courts continue to apply the principle of indirect effect, interpreting retained EU law and related domestic legislation in a way that is consistent with the purpose and wording of the original EU law, where possible.
Correcting Deficiencies
Ministers have temporary powers to correct "deficiencies" in retained EU law (e.g., references to EU institutions or reciprocal arrangements that no longer apply) by secondary legislation. These powers are limited and cannot be used to make major policy changes.
Departing from Retained EU Case Law
Only the Supreme Court, Court of Appeal, and certain other higher courts may depart from retained EU case law, and only when it appears right to do so. Lower courts remain bound by pre-Brexit CJEU decisions when interpreting retained EU law.
Worked Example 1.1
A UK court is asked to interpret a retained EU regulation on air passenger compensation. The regulation was directly applicable before Brexit, and the CJEU had decided before Brexit that compensation must be paid for certain delays. Can the UK court follow the CJEU's interpretation?
Answer: Yes. The UK court must apply the pre-Brexit CJEU decision when interpreting the retained EU regulation, unless a higher UK court has decided to depart from it.
Worked Example 1.2
A conflict arises between a retained EU regulation and a UK Act of Parliament passed in 2022. Which law prevails?
Answer: The UK Act of Parliament passed after 31 December 2020 prevails over retained EU law, reflecting parliamentary sovereignty.
Exam Warning
For SQE1, remember that not all EU law is retained. Only EU law operative in the UK before the end of the transition period is preserved. Post-Brexit EU law, new CJEU decisions, and the EU Charter of Fundamental Rights are not part of retained EU law.
Summary
Retained EU law is a distinct category of UK law created to ensure legal continuity after Brexit. It includes EU-derived domestic legislation, direct EU legislation, and certain directly effective rights. Retained EU law prevails over earlier UK law but not over new Acts of Parliament. UK courts must interpret retained EU law in line with pre-Brexit CJEU case law unless a higher court decides otherwise. Ministers can correct technical deficiencies, but major changes require new legislation.
Key Point Checklist
This article has covered the following key knowledge points:
- Retained EU law consists of EU-derived domestic legislation, direct EU legislation, and certain directly effective rights.
- Retained EU law prevails over UK legislation enacted before Brexit, but not over Acts of Parliament passed after 31 December 2020.
- Pre-Brexit CJEU case law and general principles remain binding for interpreting retained EU law unless a higher UK court departs from them.
- Only the Supreme Court, Court of Appeal, and equivalent courts may depart from retained EU case law.
- Ministers can correct deficiencies in retained EU law by secondary legislation, but cannot make major policy changes without new Acts of Parliament.
- The EU Charter of Fundamental Rights and post-Brexit EU law are not part of retained EU law.
Key Terms and Concepts
- EU-derived domestic legislation
- Direct EU legislation
- Rights arising under s 2(1) ECA 1972
- Retained EU case law
- General principles of EU law
- Supremacy of retained EU law
