Learning Outcomes
After studying this article, you will be able to explain the concept and categories of retained EU law, describe how retained EU law interacts with UK law, and analyse the constitutional implications for parliamentary sovereignty and the rule of law. You will also be able to apply the principles of supremacy, interpretation, and amendment of retained EU law to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the status and operation of retained EU law within the UK legal system post-Brexit. In your revision, focus on:
- the definition and categories of retained EU law
- the constitutional relationship between retained EU law and UK law, including supremacy and parliamentary sovereignty
- the interpretation and amendment of retained EU law by UK courts and Parliament
- the practical implications for legal practice and client advice
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.
- What is retained EU law and which main categories does it include?
- How does the principle of supremacy apply to retained EU law after Brexit?
- Can Parliament amend or repeal retained EU law? If so, how does this affect parliamentary sovereignty?
- How are UK courts required to interpret retained EU law, and can they depart from pre-Brexit CJEU case law?
Introduction
The UK's withdrawal from the European Union required the preservation of a large body of EU law within the domestic legal system to avoid legal gaps and uncertainty. This body is known as retained EU law. Its status and relationship with UK law raise important constitutional issues, especially regarding parliamentary sovereignty, the rule of law, and the ongoing influence of EU legal principles. Understanding these interactions is essential for SQE1.
Categories and Nature of Retained EU Law
Retained EU law is not a single type of law but a collection of different legal sources preserved by the European Union (Withdrawal) Act 2018 (EUWA 2018) and related legislation. The main categories are:
- EU-derived domestic legislation: UK statutes and statutory instruments made to implement EU obligations, such as regulations enacting EU directives.
- Direct EU legislation: EU regulations and certain decisions that were directly applicable in the UK before Brexit, now converted into domestic law.
- Directly effective rights: Rights, powers, liabilities, and obligations from EU treaties and directives that had direct effect in the UK before Brexit and are preserved where recognised by courts.
- General principles of EU law: Certain fundamental principles, such as proportionality and legal certainty, are retained only if recognised by courts before Brexit and only for interpretative purposes.
Key Term: retained EU law Retained EU law is the body of EU rules, rights, and principles preserved in UK law after Brexit to ensure legal continuity.
Key Term: EU-derived domestic legislation UK legislation (primary or secondary) made to implement EU obligations, now forming part of retained EU law.
Key Term: direct EU legislation EU regulations and certain decisions that were directly applicable in the UK and are now part of retained EU law.
Key Term: directly effective rights Rights from EU treaties or directives that individuals could enforce in UK courts without further legislation, preserved if recognised before Brexit.
Key Term: supremacy of retained EU law The principle that retained EU law prevails over conflicting UK legislation enacted before the end of the Brexit transition period.
Key Term: parliamentary sovereignty The constitutional principle that Parliament is the supreme legal authority and can make or unmake any law.
Key Term: indirect effect The requirement for UK courts to interpret domestic law, as far as possible, in line with the wording and purpose of relevant EU law.
Key Term: Withdrawal Agreement The international treaty between the UK and EU setting out the terms of the UK's exit, including citizens' rights and the transition period.
Constitutional Relationship: Supremacy and Parliamentary Sovereignty
Supremacy of Retained EU Law
Retained EU law maintains a limited form of supremacy over UK legislation enacted before the end of the transition period (31 December 2020). If there is a conflict between retained EU law and earlier UK law, retained EU law prevails. However, UK legislation enacted after the transition period takes priority over retained EU law.
Parliamentary Sovereignty and Amendment
Parliament remains sovereign and can amend or repeal retained EU law at any time. The preservation of supremacy for retained EU law does not prevent Parliament from legislating contrary to it in the future. This means that, although retained EU law may override older UK laws, Parliament can expressly change or remove retained EU law by passing new legislation.
Worked Example 1.1
A 2015 UK Act conflicts with a retained EU regulation on consumer rights. Which law prevails?
Answer: The retained EU regulation prevails over the 2015 Act due to the supremacy of retained EU law. However, Parliament can later pass a new Act to override or repeal the retained EU regulation.
Interpretation and Judicial Role
Interpretation of Retained EU Law
UK courts must interpret retained EU law in accordance with pre-Brexit CJEU case law and general principles of EU law recognised before Brexit, unless Parliament has modified the law. The Supreme Court and Court of Appeal can depart from pre-Brexit CJEU case law using the same test as for departing from their own previous decisions. Lower courts remain bound by pre-Brexit CJEU case law.
Indirect Effect
Courts must continue to interpret UK legislation implementing retained EU law as far as possible in line with the wording and purpose of the original EU law (the principle of indirect effect).
Worked Example 1.2
A worker brings a claim under the Working Time Regulations 1998 (derived from an EU directive). How should the court interpret the regulations?
Answer: The court must interpret the regulations, as far as possible, in line with the original EU directive and relevant pre-Brexit CJEU case law, unless Parliament has amended the regulations.
Amendment, Revocation, and Future Developments
Amending or Repealing Retained EU Law
Parliament can amend or repeal retained EU law at any time. Ministers may also have temporary powers to correct "deficiencies" in retained EU law by secondary legislation, but cannot use these powers to make major policy changes unless authorised by Parliament.
Ending Supremacy and Sunsetting
Recent legislative proposals, such as the Retained EU Law (Revocation and Reform) Bill, aim to remove the supremacy of retained EU law and allow for its easier amendment or revocation. This would further strengthen parliamentary sovereignty and reduce the ongoing influence of EU law in the UK.
Worked Example 1.3
A government minister uses secondary legislation to amend a retained EU regulation on product standards. Is this permitted?
Answer: Ministers can amend retained EU law by secondary legislation only if Parliament has granted them the power to do so, usually to correct technical deficiencies. Major policy changes require primary legislation.
The Withdrawal Agreement and Citizens' Rights
The Withdrawal Agreement is an international treaty between the UK and EU that governs the terms of the UK's exit. It is given effect in UK law by the European Union (Withdrawal Agreement) Act 2020. The Agreement protects certain rights of UK and EU citizens and provides for the continued application of some EU law during the transition period. Some provisions of the Withdrawal Agreement have direct effect, meaning individuals can rely on them in UK courts.
Practical Implications for Legal Practice
Legal professionals must be able to:
- Identify whether a legal issue involves retained EU law and determine its category.
- Advise clients on the status and potential amendment or repeal of retained EU law.
- Interpret retained EU law in line with pre-Brexit CJEU case law unless Parliament has changed the law.
- Monitor legislative developments that may affect the status or content of retained EU law.
Revision Tip
When advising clients, always check whether the relevant law is retained EU law and whether it has been amended or repealed since Brexit. The legal position may change rapidly.
Key Point Checklist
This article has covered the following key knowledge points:
- Retained EU law is the body of EU rules, rights, and principles preserved in UK law after Brexit to ensure legal continuity.
- The main categories are EU-derived domestic legislation, direct EU legislation, and directly effective rights.
- Retained EU law prevails over UK legislation enacted before the end of the transition period, but Parliament can amend or repeal it at any time.
- UK courts must interpret retained EU law in line with pre-Brexit CJEU case law and general principles, unless Parliament has changed the law.
- The Withdrawal Agreement protects certain rights and may have direct effect in UK law.
- The ongoing relationship between UK law and retained EU law is subject to legislative and judicial developments.
Key Terms and Concepts
- retained EU law
- EU-derived domestic legislation
- direct EU legislation
- directly effective rights
- supremacy of retained EU law
- parliamentary sovereignty
- indirect effect
- Withdrawal Agreement
