Learning Outcomes
By the end of this article, you will be able to identify and explain the main sources of retained EU law in the UK, distinguish between EU-derived domestic legislation and direct EU legislation, and understand how retained EU law interacts with UK statutes post-Brexit. You will also be able to apply these principles to SQE1-style scenarios involving legal hierarchy, interpretation, and the status of retained EU law.
SQE1 Syllabus
For SQE1, you are required to understand the place of EU law in the UK constitution after Brexit, focusing on the sources, categories, and status of retained EU law. In your revision, pay particular attention to:
- the definition and main sources of retained EU law under the European Union (Withdrawal) Act 2018
- the distinction between EU-derived domestic legislation, direct EU legislation, and other retained EU rights
- how retained EU law is interpreted and its relationship with UK statutes
- the principle of supremacy as it applies to retained EU law
- the practical implications for legal advice and litigation involving retained EU 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.
- What are the three main sources of retained EU law under the European Union (Withdrawal) Act 2018?
- How does the principle of supremacy apply to retained EU law after Brexit?
- Which UK courts may depart from retained EU case law, and under what circumstances?
- What is the difference between EU-derived domestic legislation and direct EU legislation?
Introduction
Retained EU law is a core feature of the UK legal system following Brexit. It refers to the body of EU law that was preserved and incorporated into UK law at the end of the transition period, ensuring legal continuity after the UK left the EU. The European Union (Withdrawal) Act 2018 (EUWA 2018) is the key statute that defines, preserves, and categorises retained EU law. Understanding the sources and status of retained EU law is essential for SQE1, as it affects legal hierarchy, statutory interpretation, and the advice solicitors give to clients.
Sources of Retained EU Law
The EUWA 2018 preserves a "snapshot" of EU law as it existed in the UK at 11:00 pm on 31 December 2020 (IP completion day). Retained EU law is divided into three main sources:
EU-derived Domestic Legislation
This category includes UK statutes and statutory instruments that were enacted to implement the UK's obligations under EU law, especially EU directives. These laws were made under the authority of the European Communities Act 1972 and continue to operate as part of UK law.
Key Term: EU-derived domestic legislation
UK primary or secondary legislation made to implement the UK's obligations under EU law, especially directives, and preserved as part of retained EU law after Brexit.
Direct EU Legislation
This source covers EU regulations, certain EU decisions, and tertiary EU legislation that were directly applicable in the UK without the need for domestic implementation. These instruments are now treated as part of UK law, with their text as it stood on IP completion day.
Key Term: direct EU legislation
EU regulations, decisions, and tertiary legislation that were directly applicable in the UK and are now retained as part of UK law.
Other Retained EU Rights
Some rights, powers, obligations, and remedies arising under EU treaties or directly effective provisions are preserved if they were recognised and available in UK law immediately before IP completion day. This includes directly effective treaty articles and certain rights from directives that had been recognised by courts.
Key Term: retained EU rights
Rights, powers, liabilities, obligations, and remedies from EU law that were recognised in UK law before Brexit and are preserved as retained EU law.
The Principle of Supremacy and Retained EU Law
Before Brexit, the principle of supremacy meant that EU law took precedence over conflicting UK law. After Brexit, the EUWA 2018 modifies this principle:
- Retained EU law has supremacy over UK statutes and rules made before IP completion day, but not over those made after.
- New UK legislation enacted after IP completion day prevails over retained EU law, unless Parliament expressly provides otherwise.
Key Term: supremacy of retained EU law
The rule that retained EU law prevails over pre-Brexit UK legislation in case of conflict, but not over post-Brexit statutes.
Worked Example 1.1
A 2015 UK Act conflicts with a 2012 EU regulation that is now retained EU law. Which law prevails?
Answer: The retained EU regulation prevails over the 2015 Act, as the regulation is treated as having supremacy over pre-Brexit UK statutes.
Worked Example 1.2
A 2022 UK Act conflicts with a retained EU regulation. Which law applies?
Answer: The 2022 Act prevails, as post-Brexit statutes take precedence over retained EU law unless Parliament states otherwise.
Interpretation and Case Law
UK courts must interpret retained EU law in line with retained EU case law (i.e., CJEU and UK court decisions handed down before IP completion day) and retained general principles of EU law. However, UK courts are no longer bound by post-Brexit CJEU decisions, though they may consider them if appropriate.
The Supreme Court, the High Court of Justiciary in Scotland, and certain appellate courts may depart from retained EU case law, applying the same test as when departing from their own precedents.
Key Term: retained EU case law
Decisions of the CJEU and UK courts on EU law made before IP completion day, which remain relevant for interpreting retained EU law.
Categories of Retained EU Law
Retained EU law is classified for legal purposes:
- EU-derived domestic legislation keeps its original status as primary or secondary legislation.
- Direct EU legislation is treated as a new category of UK law, with "principal" legislation (mainly regulations) generally amendable only by primary legislation, and "minor" legislation (mainly tertiary acts and decisions) amendable by secondary legislation.
Key Term: principal retained EU legislation
Retained direct EU legislation (mainly regulations) that can only be amended by primary legislation or in limited cases by secondary legislation.Key Term: minor retained EU legislation
Retained direct EU legislation (mainly tertiary acts and decisions) that can be amended by secondary legislation.
Amending and Repealing Retained EU Law
Ministers have temporary powers to amend retained EU law to correct "deficiencies" arising from Brexit, such as references to EU institutions or reciprocal arrangements that no longer apply. These powers are limited and cannot be used to make major policy changes. Parliament can also amend or repeal retained EU law through new legislation.
Revision Tip
Focus your revision on the hierarchy between retained EU law and UK statutes, and the distinction between EU-derived domestic legislation and direct EU legislation.
Practical Application
Solicitors must identify whether a legal issue is governed by retained EU law, a new UK statute, or both. For example, employment disputes involving working time or equal pay may require analysis of both retained EU law and UK legislation, and an understanding of which law prevails.
Key Point Checklist
This article has covered the following key knowledge points:
- Retained EU law is the body of EU law preserved in UK law after Brexit, defined by the European Union (Withdrawal) Act 2018.
- The three main sources of retained EU law are EU-derived domestic legislation, direct EU legislation, and other retained EU rights.
- Retained EU law has supremacy over pre-Brexit UK statutes but not over post-Brexit statutes.
- UK courts must interpret retained EU law in line with retained EU case law and general principles, but may depart from pre-Brexit CJEU decisions in limited circumstances.
- Ministers can amend retained EU law to correct deficiencies, but Parliament can amend or repeal it through new legislation.
- Understanding the sources and status of retained EU law is essential for advising clients and answering SQE1 questions.
Key Terms and Concepts
- EU-derived domestic legislation
- direct EU legislation
- retained EU rights
- supremacy of retained EU law
- retained EU case law
- principal retained EU legislation
- minor retained EU legislation
