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Via the Brexit Civil Society Alliance and written by Ollie Persey (Public Law Project) with assistance from Victor Anderson.
When ministers and civil servants were thinking about how to put the implications of Brexit into legislation, they had two alternatives. One was to put each of the laws which currently apply in the UK as a result of its membership of the EU into UK law through a series of separate pieces of legislation. The other was just to cut and paste the whole of those laws into UK law through a single bill, leaving open the possibility of changing or repealing some EU-derived laws later on.
They chose this second option and this is the basis of “retained EU law”, which was put into the European Union (Withdrawal) Bill. Originally this was very misleadingly called “The Great Repeal Bill”, but rather than repeal EU laws, it simply transfers them into UK law. The Bill is now an Act of Parliament (‘the Act’). So rather than a presumption that the laws acquired through EU membership no longer apply unless Parliament explicitly agrees them, the presumption now is that initially they will all continue to apply.
Types of Retained EU Law
Retained EU law is defined in section 6(7) of the Act as “anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise)”. The key categories are set out below:
EU-derived Domestic Legislation
Section 2(1) provides that “EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day”. “EU-derived domestic legislation” has a very technical definition in section 2(2) of the Act and there are dangers in oversimplifying it. It includes secondary legislation, such as regulations or orders, made to implement EU obligations, for example those contained in EU Directives. Under s2(2) of the European communities Act 1972 (‘ECA’), Ministers are able to implement EU Directives into UK law through secondary legislation without needing an Act of Parliament. For example, the Working Time Regulations 1998/1833 were passed to implement Council Directive 93/104/EC concerning certain aspects of the organization of working time, and related provisions in other Directives.
“EU-derived domestic legislation” under the Act also includes other enactments (including Acts of Parliament) so far as “passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of the ECA: those purposes are “implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised”, or anything related to these purposes. This appears to broaden the definition of “EU-derived domestic legislation” beyond secondary legislation which was enacted to implement an EU obligation, but it is unclear how far it does so. For example, it is likely to be contentious whether parts of the Equality Act 2010 fall within this definition of retained EU-derived domestic legislation.
Direct EU Legislation
“Retained direct EU legislation” means any direct EU legislation which forms part of domestic law by virtue of section 3 of the Act (as modified by or under the Act or by other domestic law from time to time, and including any instruments made under it on or after exit day). Section 3(1) provides that “Direct EU legislation”, so far as operative immediately before exit day, forms part of domestic law on and after exit day. Subject to exceptions that are detailed in the Act, direct EU legislation includes EU regulations, decisions and tertiary legislation, any Annex to the EEA agreement and Protocol 1 to the EEA agreement. This type of EU law has “direct effect” in the UK under the ECA, meaning that the rights and obligations which it creates can be relied on in the UK, without the need for any domestic legislation. For example, Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union gives EU workers and their families certain rights in the UK which they can rely on without there being any domestic legislation to give effect to those rights.
Section 4 of the Act sets out how other rights are retained under the Act. Broadly, it provides that rights, power, powers, liabilities, obligations, restrictions, remedies and procedures that are “recognised in domestic law” by virtue of the conduit pipe in s2(1) of the ECA are retained. This includes Treaty rights which can be relied on directly and also some rights under Directives which have not been correctly or fully implemented in domestic law, but only if they have already been recognised by a domestic court or the European court. General principles of EU law (that were recognised by the European Court in a case decided before exit day) are also retained for interpretative purposes (see section 6(7)).
Notably, the EU Charter of Fundamental rights is not retained EU law (see section 5(4)) and there is no right of action in domestic law based on general principles of EU law (see schedule 1, section 3).
Status of Retained EU Law
Section 7 of the Act sets out the “status” of the various types of retained EU law and the processes by which they can be amended. Other provisions of the Act, particularly sections 8 and 9, give powers to Ministers to amend Retained EU law using secondary legislation. There was significant debate in Parliament about how wide the scope should be for the Government to make changes to retained EU law through statutory instruments, which have far less parliamentary scrutiny than provisions in primary legislation (i.e. Acts of Parliament) do.
Like much of the Act, Section 7 is very technical and there are dangers in oversimplifying it. Section 7(1) says that “EU-derived domestic legislation” which is retained under section 2 (see above) can be amended by secondary legislation only if it could have been amended in that way before exit day. So if the EU-derived legislation is contained in an Act of Parliament then the only way it can be amended is by another Act of Parliament, or a power to make secondary legislation which authorises amendments to primary legislation (a ‘Henry VIII power’).
The provisions relating to other kinds of retained EU law are more complicated. For the purposes of illustrating how retained EU law can be amended, it is worth considering just one subcategory of retained “direct” EU legislation: retained direct principal EU legislation, which includes most EU regulations.
The Act provides in s7(2) and Schedule 8 that retained direct principal legislation can be amended through:
Powers conferred under existing acts which are already Henry VIII powers (Sch 8 para 3(1))
Other delegated powers insofar as the modification is supplementary, incidental or consequential (Sch 8 para 5(3)(a)) or a power to make transitional, transitory or saving provision (Sch 8 para 5(4)(a))
Any power which permits modification of such legislation contained in the EU(W)A, or an Act of Parliament passed in the same Session as the EU(W)A or after it is passed.
Section 7 sets out how different types of retained EU law can be amended and is worth reading in detail.
How much repeal and amendment there will be is a political question, depending on what Government and Parliament want to do with their new powers. They might, for example, embark on a thorough deregulation strategy, particularly if new trade agreements lead in that direction. The “retained EU law” principle only sets out what the starting point is going to be on “exit day”.