As the UK leaves the EU, it is converting most of EU law into a new type of domestic law. "Retained EU law" is created by the EU (Withdrawal) Act 2018 and will come into effect on "exit day" (29 March 2019). But what is this new law, who can change it, and how?Jump to full report >>
The European Union (Withdrawal) Act 2018 (EUWA) repeals the European Communities Act 1972 (ECA) effective on “exit day” (29 March 2019). In so doing, it removes the domestic constitutional basis for EU law having effect in the United Kingdom. The basis in international law for EU law having effect on the UK will simultaneously have been extinguished by the operation of Article 50 of the Treaty on European Union.
However, this does not mean that EU law is of no consequence to the UK after that point. The EUWA also provides for the retention of most of that law, as it stands on exit day, by “converting” or “transposing” it into a freestanding body of domestic law. The intention of this is to provide legal certainty in the period immediately following EU exit, by (in effect) adopting a rulebook and set of institutional arrangements that is initially as close as possible to that which currently exists.
This new body of law is called “retained EU law” and will replicate several different sources of EU law as domestic equivalents. It retains this law under three distinct provisions:
In practice, this means (broadly) that the UK is retaining:
But the UK is specifically not retaining:
EUWA also provides a scheme that determines the constitutional status of these elements of EU law. Whereas previously the principle of supremacy of EU law would have given all EU law priority over any domestic law or legislation, this is not the status afforded to retained EU law.
EU law retained under section 2 of EUWA already has a domestic status, as it is either secondary legislation (mainly but not exclusively made under s2(2) ECA) or in some cases Acts of Parliament.
EU law retained under sections 3 and 4 of EUWA, however, is neither primary nor secondary legislation. It is instead a unique, new category of domestic law with new bespoke rules determining how it may be modified. The EUWA sets out these rules in section 7 and Schedule 8.
The status of retained EU law not falling into existing domestic categories is defined by section 7 EUWA. It subdivides retained direct EU legislation into two categories:
These two categories do not directly correspond to “primary” and “secondary” legislation, which are the normal distinctions drawn in domestic law. Instead, the EUWA sets out the rules that govern how those two categories of law can be modified or repealed and by what type of conventional domestic legal instrument.
Although the principle of supremacy applies to interpretation of retained direct EU legislation in relation to domestic legislation passed before exit day, the real challenge concerns interpretation of legislation passed after exit day, which may modify or repeal it (whether expressly or impliedly). The key difference between “minor” and “principal” retained direct EU legislation is that, whereas the former can be modified routinely by secondary legislation, the latter must be modified by primary legislation unless and to the extent that the provisions under which secondary legislation is made provides otherwise.