August 5, 2019

The paper’s summary explains that as the UK leaves the EU, it is converting most 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 (31 October 2019).

The Withdrawal Act repeals the European Communities Act 1972, effective on exit day. In so doing, it removes the domestic constitutional basis for EU law having effect in the UK. 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, the paper makes clear, this does not mean that EU law is of no consequence to the UK after that point. The Withdrawal Act provides for the retention of most of that law, as it stands on exit day, by “converting” or “transposing” it into a free-standing 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 “retained EU law” will replicate several different sources of EU law as domestic equivalents. It retains this law under three distinct provisions:

• Section 2 preserves EU-derived domestic legislation. This (typically) concerns the Regulations made (usually but not always under s. 2(2) of the European Communities Act) or any primary legislation passed in order to implement one or more EU Directives (though sometimes other sources of EU law);
• Section 3 preserves direct EU legislation. This is defined as all EU Regulations, decisions or tertiary legislation and certain parts of the EEA agreement;
• Section 4 preserves any directly effective residual rights, powers, liabilities, obligations, restrictions, remedies and procedures in EU law, subject to several specified exceptions;

In practice, this means (broadly) that the UK is retaining:

• EU Regulations, decisions and tertiary legislation and elements of the EEA agreement (as they existed on exit day);
• domestic legislation passed to implement EU Directives (and other EU law);
• most general principles of EU law (as they existed on exit day);
• most rights and obligations that currently exist in domestic law because of s. 2(1) of the European Communities Act (as they existed on exit day); and
• relevant case law of the Court of Justice of the European Union issued before exit day (although the UK Supreme Court and High Court of Justiciary need no longer follow it).

The UK is specifically not retaining:

• the Charter of Fundamental Rights of the European Union;
• the legislative instruments known as EU Directives themselves (as opposed to the legislation implementing them or rights and obligations under them, which will be retained);
• the principle of supremacy of EU law (for prospective legislation); and
• the Francovich principle of state liability (in relation to post exit facts).

To read the full summary and for a link to the paper, click here.