Retained EU law and the UK constitution - Modification and withdrawal of retained EU law

Learning Outcomes

After studying this article, you will be able to explain what retained EU law is, identify the main mechanisms for its modification and withdrawal, and understand the constitutional principles that govern these processes. You will be able to apply these principles to realistic scenarios, including the roles of Parliament and ministers, the limits on executive powers, and the approach of UK courts to interpreting and amending retained EU law.

SQE1 Syllabus

For SQE1, you are required to understand how retained EU law operates within the UK constitution after Brexit, and how it can be modified or withdrawn. In your revision, focus on:

• the definition and categories of retained EU law
• the powers and procedures for amending or repealing retained EU law
• the constitutional limits on ministerial powers to modify retained EU law
• the role of parliamentary sovereignty in the modification and withdrawal process
• the approach of UK courts to interpreting retained EU law and the status of pre- and post-Brexit CJEU case law

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.

1. What are the main categories of retained EU law in the UK legal system?
2. How can ministers modify retained EU law using secondary legislation, and what are the main limitations on this power?
3. Can Parliament repeal or amend retained EU law by passing a new Act? Why or why not?
4. How do UK courts treat pre-Brexit CJEU case law when interpreting retained EU law?

Introduction

The UK's withdrawal from the European Union required a legal framework to ensure continuity and certainty. The European Union (Withdrawal) Act 2018 (EUWA 2018) created the concept of retained EU law, preserving certain EU rules in domestic law after Brexit. This article explains how retained EU law can be modified or withdrawn, the constitutional safeguards in place, and the ongoing role of Parliament and the courts.

Categories of Retained EU Law

Retained EU law is a snapshot of certain EU rules as they existed in the UK immediately before the end of the Brexit transition period. It includes:

• EU-derived domestic legislation: UK statutes and statutory instruments made to implement EU obligations, such as those implementing directives.
• Direct EU legislation: EU regulations and decisions that were directly applicable in the UK.
• Directly effective rights: Certain rights from EU treaties and directives that were recognised as directly effective by UK or EU courts before Brexit.

Key Term: retained EU law
Retained EU law is the body of EU rules and rights preserved in UK law after Brexit, including EU-derived domestic legislation, direct EU legislation, and certain directly effective rights.

Mechanisms for Modification and Withdrawal

Parliamentary Powers

Parliament retains the ultimate authority to amend or repeal any part of retained EU law by passing new primary legislation. This reflects the principle of parliamentary sovereignty: Parliament can make or unmake any law, including those that originated as EU rules.

Key Term: parliamentary sovereignty
Parliamentary sovereignty means that Parliament is the supreme legal authority, able to make or repeal any law, and no other body can override its legislation.

Ministerial Powers and Secondary Legislation

Section 8 of the EUWA 2018 gives ministers temporary powers to amend retained EU law by secondary legislation (statutory instruments) to address "deficiencies" arising from Brexit. These are sometimes called "Henry VIII powers" because they allow ministers to amend primary legislation without passing a new Act.

Key Term: Henry VIII powers
Henry VIII powers are provisions in an Act of Parliament that allow ministers to amend or repeal primary legislation using secondary legislation.

Ministers can use these powers only to correct problems caused by Brexit, such as references to EU institutions or reciprocal arrangements that no longer apply. They cannot use these powers to:

• introduce new taxes
• make retrospective changes
• amend or repeal the Human Rights Act 1998
• create new criminal offences beyond certain limits

These powers are subject to a "sunset clause" and expire two years after the end of the transition period.

Key Term: secondary legislation
Secondary legislation refers to rules or regulations made by ministers under powers granted by an Act of Parliament, such as statutory instruments.

Parliamentary Scrutiny

The level of parliamentary scrutiny for secondary legislation depends on the significance of the changes. More substantial amendments require the affirmative resolution procedure, meaning both Houses of Parliament must approve the statutory instrument. Less significant changes may use the negative resolution procedure, where the instrument becomes law unless either House objects within a set period.

Example: Correcting Deficiencies

Suppose an EU regulation required UK authorities to notify the European Commission before taking certain action. After Brexit, this reference is no longer appropriate. Ministers can use secondary legislation to remove or replace the reference, ensuring the law functions in a UK-only context.

Repeal and Replacement by Primary Legislation

Parliament can also repeal or replace retained EU law entirely by passing a new Act. For example, the Fisheries Act 2020 replaced the EU's Common Fisheries Policy with a UK-specific framework for fisheries management.

Constitutional Safeguards

Limits on Ministerial Powers

Ministerial powers to amend retained EU law are limited in scope and duration. The use of Henry VIII powers is controversial because it allows the executive to change primary legislation without full parliamentary debate. Safeguards include:

• restrictions on the scope of changes
• time limits on the powers
• requirements for parliamentary scrutiny

Parliamentary Sovereignty

Despite the preservation of retained EU law, Parliament remains sovereign. It can amend or repeal any retained EU law at any time, and no retained EU law has a higher status than an Act of Parliament passed after Brexit.

Judicial Interpretation

Section 6 of the EUWA 2018 governs how UK courts interpret retained EU law:

• Pre-Brexit CJEU case law: UK courts below the Supreme Court must generally follow CJEU decisions made before Brexit when interpreting retained EU law, unless a higher court decides to depart from them.
• Post-Brexit CJEU case law: UK courts may consider, but are not bound by, CJEU decisions made after Brexit.
• Supreme Court and Court of Appeal: These courts may depart from pre-Brexit CJEU case law if they consider it appropriate, applying the same test as when departing from their own previous decisions.

Key Term: CJEU case law
CJEU case law refers to the decisions of the Court of Justice of the European Union, which interpret EU law and were binding on UK courts before Brexit.

Worked Example 1.1

A minister wants to use secondary legislation to amend a retained EU regulation that refers to the European Commission. Can the minister use Henry VIII powers to remove this reference?

Answer: Yes, if the reference is now inappropriate due to Brexit, the minister can use Henry VIII powers under section 8 of the EUWA 2018 to correct this deficiency, provided the change does not exceed the limits set by the Act.

Worked Example 1.2

Parliament wishes to repeal a retained EU regulation on environmental standards and replace it with a new UK-specific law. What process must be followed?

Answer: Parliament must pass a new Act to repeal or replace the retained EU regulation. This follows the standard legislative process, requiring approval by both Houses and Royal Assent.

Exam Warning

The use of Henry VIII powers is controversial. For SQE1, remember that ministers cannot use these powers to make major policy changes or to amend the Human Rights Act 1998. Any significant reform of retained EU law requires a new Act of Parliament.

Revision Tip

When answering SQE1 questions, always identify whether a change to retained EU law is being made by primary or secondary legislation, and whether the correct procedures and limits have been followed.

Summary Table: Modification and Withdrawal of Retained EU Law

Key Point Checklist

This article has covered the following key knowledge points:

• Retained EU law is the body of EU rules preserved in UK law after Brexit, including EU-derived domestic legislation, direct EU legislation, and certain directly effective rights.
• Parliament can amend or repeal retained EU law at any time by passing new primary legislation, reflecting parliamentary sovereignty.
• Ministers may use Henry VIII powers under section 8 of the EUWA 2018 to correct deficiencies in retained EU law, but only within strict limits and for a limited period.
• Parliamentary scrutiny of secondary legislation varies depending on the significance of the changes.
• UK courts generally follow pre-Brexit CJEU case law when interpreting retained EU law, but the Supreme Court and Court of Appeal may depart from it in appropriate cases.
• The modification and withdrawal of retained EU law must respect constitutional safeguards, including the limits on executive power and the principle of parliamentary sovereignty.

Key Terms and Concepts

• retained EU law
• parliamentary sovereignty
• Henry VIII powers
• secondary legislation
• CJEU case law