8 - Retained EU Law / Assimilated Law

Question 1

What was the impact of the UK’s membership in the European Communities and later the EU on UK law?

Answer 1

The UK joined the European Communities on 1 January 1973. Over time, the European Communities became the EU. EU law became an increasingly pervasive part of the UK legal system. Substantial parts of English law were influenced by EU law.

EU law had supremacy over UK law in cases of conflict, as per the European Communities Act 1972 (ECA 1972), which was repealed by the European Union (Withdrawal) Act 2018 (EUWA 2018).

Question 2

What were the key events and changes in the UK legal system following the referendum to leave the EU?

Answer 2

• The UK voted to leave the EU in a referendum on 23 June 2016, with 52% in favour and 48% against.
• The UK’s exit from the EU occurred on 31 January 2020 following a Withdrawal Agreement agreed between the UK and EU in October 2019.
• The Withdrawal Agreement came into force on 1 February 2020 and provided for a transition period lasting until 31 December 2020.
• During the transition period, the UK was treated as a Member State for many purposes, and EU law remained in full force.
• The end of the transition period on 31 December 2020 marked a profound change in the UK legal system.

Question 3

What is ‘retained EU law’ and why was it introduced by the EUWA 2018?

Answer 3

• If all EU law had ceased to apply upon the UK’s exit, massive gaps would have emerged in the UK’s statute book and regulatory systems.
• The UK Parliament enacted the EUWA 2018 to provide legal continuity by creating the concept of ‘retained EU law’ (now assimilated law).
• Retained EU law (now assimilated law) preserved EU law as it existed on the date of the UK’s exit as a new category of English law with distinctive features.
• The original version of EUWA 2018 catered for the possibility of a ‘no-deal Brexit’, but the UK ultimately left the EU on the basis of the Withdrawal Agreement.
• To implement the Withdrawal Agreement into domestic law, the UK Government enacted the European Union (Withdrawal Agreement) Act 2020 (Withdrawal Agreement Act 2020), which amended the EUWA 2018 and included free-standing provisions.

Question 4

What significant changes were introduced by the Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023)?

Answer 4

REULA 2023 received royal assent on 29 June 2023, making significant changes to the status, interpretation, and application of retained EU law as of 1 January 2024.

The UK Government believed that a gradual approach to reviewing or repealing retained EU law was insufficient to fully benefit from Brexit.

REULA 2023 aimed to:
- Amend retained EU law more easily.
- Remove the special features of retained EU law from the UK legal system.
- Reclaim the sovereignty of Parliament.
- Restore the primacy (supremacy) of Acts of Parliament.
- Allow the Government to update outdated legislation in response to various reviews.

Question 5

What is the ‘sunset’ provision in REULA 2023, and what were the criticisms and modifications?

Answer 5

The original Bill proposed revoking all retained EU law on 31 December 2023 unless specifically retained, preserved, or part of EU-derived primary legislation - sunsetting provisions. However, this was met with widespread criticism, highlighting the risk of inadvertently ommitting laws if the Government fails to identify them.

Instead:
- The extensive sunsetting provisions were dropped from the Bill.
- Section 1 of REULA 2023 provided for the revocation of 587 instruments of retained EU law (renamed assimilated law) listed in Schedule 1 to REULA 2023 at the end of 31 December 2023.
- However, the list was not completely reliable, as some instruments were later removed from the sunset, while other legislation also contained sunsetting provisions, such as the Procurement Act 2023.

Question 6

What is the status of retained EU law/assimilated law as of May 2024?

Answer 6

Despite REULA 2023, retained EU law (now renamed ‘assimilated law’ by REULA 2023) remains a significant source of law.

REULA 2023 grants considerable powers to UK ministers.

Question 7

What is the impact of the Trade and Cooperation Agreement (TCA) on assimilated law?

Answer 7

The TCA governs the post-Brexit trade relationship between the UK and EU, covering a wide range of issues, including:
- Quota and tariff-free trade in goods.
- Movement of services.
- Competition.
- State subsidies.
- Air and road transport.
- Energy and sustainability.
- Fisheries.
- Data protection.
- Social security.

The TCA, a free trade agreement, falls short of the arrangements the UK had as a Member State, creating more barriers to trade.

The European Union (Future Relationship) Act 2020 (EU(FR)A 2020) implements the TCA into domestic law.

Section 29 of EU(FR)A 2020 is an unusual provision that acts as a ‘sweeping-up’ mechanism, automatically amending any UK statute not compliant with the TCA to give effect to it.

Question 8

What are the different types of EU legislation that can be converted into assimilated EU Law?

Answer 8

• Treaty Articles - Foundational legal provisions of the EU, forming part of its constitutional framework, directly applicable in member states.
• Regulations - Binding legislative acts that apply directly in all member states without needing domestic implementation.
• Directives - Legislative measures that set goals for member states, which must be achieved by implementing national legislation in any way the MS wishes.
• Decisions - Binding legal judgments by the CJEU addressed to specific parties (individuals, companies, or member states) and directly applicable without further implementation.

Question 9

What are tertiary acts?

Answer 9

Tertiary Acts: The TFEU establishes two types of tertiary acts:

Delegated Acts: Under Article 290 TFEU, EU secondary legislation (regulations, directives, and decisions) can delegate authority to the European Commission to adopt acts that supplement or amend the existing legislation.

Implementing Acts: Article 291(2) TEU allows legally binding EU acts to delegate power to the European Commission to adopt acts necessary for their implementation, ensuring uniformity in execution; in specific cases, this power can also be given to the Council of the European Union.

Tertiary acts can take the form of regulations, directives, or decisions.

Question 10

What is retained EU law/assimilated law and when did it come into effect?

Answer 10

• The Withdrawal Agreement Act 2020 amended the EUWA 2018 so that retained EU law came into effect at the end of the transition period, referred to as ‘IP completion day’, defined as 11.00pm on 31 December 2020.
• Retained EU law is a snapshot of EU law in force in the UK immediately before IP completion day, continuing in force despite the UK’s exit from the EU.
• Key aspects of EU law were repealed at IP completion day, such as laws on free movement, due to the UK leaving the customs union and single market.
• A substantial body of retained EU law remains for the UK and devolved governments to decide whether to keep or replace.

Question 11

What is EU-derived domestic legislation and how is it preserved?

Answer 11

• Section 2 of the EUWA 2018 preserves certain ‘EU-derived domestic legislation’ made under the ECA 1972.
• It includes secondary legislation enacted by the UK Government, often in the form of regulations, to implement EU obligations from EU Directives.
• An example is the EU adopted Council Directive 93/104/EC concerning working time, leading to the UK enacting the Working Time Regulations 1998/1833.
• If secondary legislation implementing EU obligations had not been converted into retained EU law, it would have fallen away at the end of the transition period.
• EU-derived domestic legislation also includes some Acts of Parliament, like parts of the Equality Act 2010, enacted to implement EU anti-discrimination Directives.
• The status as retained EU law is significant as it is subject to ministers’ powers to correct deficiencies and benefits from a limited degree of supremacy.

REULA 2023 converted EU-derived domestic legislation into assimilated law, changing its status within the UK legal system.

Question 12

What constitutes direct EU legislation and its conversion into UK law?

Answer 12

• Section 3 of the EUWA 2018 converted certain ‘direct EU legislation’ into UK law if ‘operative’ immediately before ‘IP completion day’.
• Some EU legislation applied directly in the UK legal system without implementing UK legislation, particularly EU Regulations and certain decisions of the EU.
• EU Regulations are directly applicable and binding in all Member States, while decisions are binding on those to whom they are addressed.
• An example of an EU Regulation that became direct EU legislation is Regulation (EC) 261/2004, protecting air passenger rights, which continued to benefit airline passengers in the UK after IP completion day.

REULA 2023 converted direct EU legislation into direct assimilated legislation but made significant changes to its status.

Question 13

What is the significance of directly effective rights arising under EU treaties in the context of retained EU law post-Brexit?

Answer 13

Preservation of Rights:
- Section 4(1) of the ECA 1972 preserved certain rights, powers, liabilities, obligations, restrictions, remedies, and procedures in UK law immediately before IP completion day.
- Aimed to ensure remaining EU rights and obligations not covered by sections 2 and 3 became part of retained EU law.

Directly Effective Rights:
- Includes directly effective rights in EU treaties, enforceable in national courts.
- Significant right retained: Equal pay for men and women under Article 157 of the TFEU.

Role of the Equality Act 2010:
- Prohibits sex discrimination; most victims rely on it rather than on retained Article 157 rights.
- If the Equality Act falls short, victims can still rely on retained Article 157 rights.

Limitations:
- Many other directly effective treaty articles did not become retained EU law due to the UK’s repeal following its exit from the single market and customs union.
- Directives are generally excluded as they are implemented by domestic legislation (EU-derived domestic legislation).

Changes Post-2023:
- Section 2 of REULA 2023 repeals section 4 of the EUWA 2018, making rights retained under that section unenforceable in UK law from the end of 2023.
- The Government can still enact statutory instruments to codify rights retained on IP completion day, including preserving Article 157 TFEU rights.

Question 14

What is the status of retained EU law/assimilated law under the EUWA 2018?

Answer 14

Definition: Section 7 of the EUWA 2018 (as amended by REULA 2023) defines the status of assimilated law.

Status of EU-derived Domestic Legislation:
Section 7(1) states that EU law assimilated under section 2 of the EUWA 2018 has the same status as it had before IP completion day, classified as either primary or secondary legislation.

New Category of Law:
EU law assimilated under section 3 of the EUWA 2018 does not fit existing categories; it creates a new category of domestic law known as assimilated direct legislation (previously retained direct EU legislation).

Subcategories of Assimilated Direct Legislation:
- Principal Legislation: Includes most EU Regulations.
- Minor Legislation: Broadly covers EU tertiary legislation and EU decisions.

Key Differences:
Principal legislation is treated as ‘primary’ for the purposes of the Human Rights Act (HRA) 1998, which prevents invalidation for incompatibility with Convention rights.
A declaration of incompatibility is possible under section 4 of the 1998 Act, but this does not invalidate the legislation.

Amendment Process:
Prior to REULA 2023, it was easier to amend minor legislation than principal legislation; however, both can now be amended similarly.

Question 15

How is retained EU law/assimilated law interpreted post-IP completion day?

Answer 15

Section 6(3) of the EUWA 2018 (as amended by REULA 2023) states that questions on the meaning of assimilated law that remains ‘unmodified’ after IP completion day will be determined by UK courts in accordance with relevant ‘retained case law’.

Section 6(6) provides that questions on the meaning of assimilated law modified by UK law can be determined in accordance with relevant retained case law if consistent with the intention of the modifications.

Question 16

What constitutes retained EU case law/assimilated case law?

Answer 16

• Assimilated law is interpreted in line with assimilated case law, which consists of retained domestic case law and retained EU case law.
• Assimilated domestic case law includes principles and decisions by UK courts before the end of IP completion day regarding assimilated law.
• Assimilated EU case law consists of principles and decisions by the Court of Justice of the European Union (CJEU) before IP completion day regarding assimilated law.
• UK courts cannot make references to the CJEU on questions of EU law, but CJEU judgments remain binding on all UK courts below the level of the Court of Appeal or equivalent courts.

Question 17

What are the general principles of EU law and their status before IP completion day?

Answer 17

• General principles of EU law are an important source of EU Law, including direct effect and supremacy.
• The EUWA 2018 as originally enacted provided for the retention of those general principles of EU law that had been recognised as such by EU case law before IP completion day.
• However, retained general principles could only be used to interpret retained EU law.
• Unlike the position before IP completion day, failure to comply with a general principle could not give rise to a right of action. This meant that UK courts could not disapply national legislation that breached a general principle.

Question 18

What changes were made to retained general principles of EU law under REULA 2023?

Answer 18

However, s 4 of REULA 2023 abolished retained general principles of EU law from the end of 2023.

Accordingly, they have not become assimilated law.

The consequence of abolishing them is illustrated by analysing Kücükdeveci v Swedex GmbH & Co KG (Case C- 555/ 07) EU:C:2010:21, [2010] ECR I- 00365, in which the CJEU stated that national courts had to set aside any provision of national law that breached the general principle of equality, however with this amendment, the UK will no longer have to do this.

Question 19

How did the principle of equality affect UK courts during EU membership?

Answer 19

As the German law breached the principle of equality, the German court had to disapply the offending German law, enabling the employee to succeed in his claim.

During the UK’s membership of the EU, UK courts would have been required to adopt the same approach and to disapply legislation, including primary legislation, that breached the principle of equality.

However, after IP completion day this was no longer the case, although until the end of 2023 UK courts would have used the principle of equality to interpret retained EU law in the field of discrimination.

Now they are not even an aid to interpretation of assimilated law, though remain relevant to the application of the Withdrawal Agreement between the EU and UK.

Question 20

What is the exclusion of state liability under the EUWA 2018?

Answer 20

In addition to the exclusions referred to in 10.6 above, the EUWA 2018 also excludes the principle of state liability (‘Francovich damages’).

In certain circumstances, EU law gives individuals the right to claim damages from a Member State for its failure to implement a Directive at all or properly, or for other breaches of EU law.

This was first recognised in the CJEU case of Francovich v Italian Republic (Joined Cases C– 6/ 90 and 9/ 90) ECLI:EU:C:1991:428, [1991] ECR I- 5357 so the principle of state liability has also been labelled the right to ‘Francovich damages’.

There is a saving for claims for Francovich damages begun within the period of two years beginning with IP completion day so far as the proceedings relate to anything that occurred before IP completion day.

Question 21

What principles govern the correction of deficiencies in retained EU law?

Answer 21

Section 8 of the EUWA 2018 granted temporary powers for UK Government ministers and devolved administrations to make secondary legislation that corrected ‘deficiencies’ in retained EU law.

Deficiencies were defined to include:
- Provisions that have no practical application after the UK has left the EU;
- Provisions on functions that during the UK’s membership of the EU were carried out in the EU on the UK’s behalf, for example by an EU agency;
- Provisions on reciprocal arrangements or rights between the UK and other EU Member States that are no longer in place or are no longer appropriate;
- Any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate; and
EU references that are no longer appropriate.

Deficiencies not on the list but which were ‘of a similar kind’ to those listed also fell within the scope of the correcting power.

Question 22

What was the position of the supremacy of retained EU law pre-REULA 2023?

Answer 22

Retained EU law maintained a limited form of supremacy until the end of 2023, when REULA 2023 abolished it.

Before REULA 2023, there were three categories of law:
- Retained EU law
- UK legislation enacted pre-IP completion day that was not retained EU law
- All UK legislation enacted after IP completion day

If a conflict occurred between retained EU law and pre-IP completion day legislation that was not retained EU law, retained EU law would have prevailed.

Example: A conflict between a 2010 EU Regulation (retained EU law) and a 2018 Act of Parliament would see the Regulation prevail before REULA 2023.

REULA 2023 ended this limited supremacy of retained EU law.

Question 23

What did REULA 2023 change in relation to the supremacy of retained EU law (assimilated law)?

Answer 23

REULA 2023 abolished the supremacy of retained EU law from 31 December 2023.

It introduced a new priority rule for assimilated direct legislation (previously retained direct EU legislation), which:
- Must, as far as possible, be read in a way compatible with all domestic enactments.
- Is subject to all domestic enactments if incompatible with them.

This reversed the priorities applied before 2023. An Act of Parliament now has priority over previously prevailing EU Regulations.

The Bar Council criticised this for creating legal uncertainty, as it retroactively alters the effect of legislation, potentially leading to unforeseen consequences.

Question 24

What impact did the removal of the principle of consistent interpretation have under REULA 2023?

Answer 24

REULA 2023 removed the principle of consistent interpretation (Marleasing principle), which required UK courts to interpret UK regulations consistently with the underlying EU Directive.

UK courts are no longer obligated to interpret domestic legislation in line with EU Directives.

However, UK courts may still take the Directive into account as an extrinsic aid to interpretation, under national statutory interpretation principles.

Question 25

Can ministers recreate the effects of supremacy or general principles after REULA 2023?

Answer 25

Despite the abolition of supremacy and general principles, REULA 2023 allows ministers to ‘recreate’ their effect in a limited way.

A minister can specify that a provision of direct assimilated legislation will prevail over a specific enactment, but not all enactments in general.

Example: A minister could give the EU Regulation of 2010 priority over a specific 2018 Act of Parliament, but not over all domestic legislation.

Question 26

What are incompatibility orders and how are they used in the UK legal system post-REULA 2023?

Answer 26

Incompatibility orders must be issued if a court finds a conflict between retained direct EU legislation and domestic legislation.

The court can:
- Set out the effect of one provision taking priority over another.
- Delay the order’s enforcement.
- Remove or limit the effect of the relevant provision before the order comes into force to avoid unfairness or public interest issues.

Courts cannot change the order of priority of conflicting laws, making incompatibility orders a novel feature in UK law. Their practical application remains to be seen.

Question 27

How is EU-derived domestic legislation treated post-REULA 2023 in terms of classification?

Answer 27

Domestic law that has become assimilated law by virtue of section 2 of the EUWA 2018, as amended by REULA 2023 (EU-derived domestic legislation), continues to be classed as primary or secondary legislation as applicable.
- EU-derived domestic legislation that is primary legislation will be treated in the same way as any other Act of Parliament.
- Secondary legislation that falls within section 2 of the EUWA 2018 can be challenged on the same public law grounds that apply to any other secondary legislation.

Question 28

Can assimilated EU law be challenged on the basis of invalidity post-IP completion day?

Answer 28

No provision of assimilated EU law can be challenged on or after IP completion day on the basis that an EU instrument, such as an EU regulation or decision, was invalid.

For example, if an EU regulation had become retained EU law and subsequently assimilated law under section 3 of the EUWA 2018, it is not possible to challenge the validity of the assimilated regulation on the grounds that the original EU regulation was invalid.

This exclusion does not apply where:
- The CJEU has found the EU instrument to be invalid prior to IP completion day.
- Regulations made by a UK minister permit the challenge (e.g. the Challenges to Validity of EU Instruments (EU Exit) Regulations 2019 (SI 2019/673)).

Question 29

How is assimilated direct legislation treated under the HRA 1998 for challenges this assimilated legislation?

Answer 29

Assimilated direct principal legislation is treated as primary legislation for the purposes of challenges under the HRA 1998, i.e. it can be subject to a declaration of incompatibility, but that finding does not affect its continued validity.

Assimilated direct minor legislation is treated as subordinate legislation for HRA 1998 purposes, so it can be declared invalid if held to be incompatible.

Question 30

What challenges are expected regarding modifications to retained EU law and the revocation of retained EU law/assimilated law?

Answer 30

A significant number of challenges are likely in relation to modifications made to retained EU law by ministers using the powers to correct deficiencies.

Although the EUWA 2018 defines deficiencies widely, challenges are probable on the basis that ministers have used them to make substantive policy changes rather than simply to correct deficiencies.

There are also likely to be legal challenges to secondary legislation made by the Government that seeks to revoke retained EU law or assimilated law.

Question 31

How should UK courts apply retained EU law, according to Lipton & Anor v BA City Flyer Ltd [2021] EWCA Civ 454 pre-REULA 2023?

Answer 31

Determine status: Assess whether the EU regulation in question is retained EU law. In Lipton, Regulation 261/2004 was found to have been operative before IP completion day and thus retained (EUWA 2018, s 3(1) and (2)).

Supremacy of EU law: Retained EU law enjoys limited supremacy, taking precedence over domestic law pre-dating IP completion day (EUWA 2018, s 5(2)). This principle was abolished after REULA 2023.

Amendments by UK legislation: Check if the regulation has been amended domestically. In Lipton, the UK version of Regulation 261/2004 had been amended to apply to flights departing from or arriving at UK airports.

Purposive construction: Retained EU law must be interpreted purposively - applying law based on its purpose and objectives rather than literal wording.

Pre-IP completion day CJEU case law: UK courts should consider this but are not obliged to follow it.

General EU law principles: Pre-IP completion day principles should be considered, although none were relevant in Lipton.

TCA and EU(FR)A 2020 impact: Assess whether these have amended or superseded the retained EU law. In Lipton, the TCA did not require amendments as Regulation 261/2004 already provided effective procedures.

Question 32

How do UK courts apply retained EU law/assimilated law under REULA 2023?

Answer 32

Determine the Status: Courts check if the relevant EU regulation became retained EU law (pre-2024) or assimilated law (post-2024).

Purpose-based Construction: A purposive interpretation is still applied, but the Marleasing principle (consistent interpretation with EU law) is no longer used.

Pre-IP Completion Day CJEU Case Law: Courts may consider pre-IP completion day CJEU decisions but are not bound by them. The UK Courts and Tribunals are no longer able to make preliminary references to the CJEU on questions of assimilated law.

Amendments by Domestic Law: Courts verify any amendments made by UK domestic law to retained/assimilated law (e.g., Regulation 261/2004 for UK airports).

Abolition of General EU Principles: General principles of EU law have been abolished, so courts do not consider these principles.

Effect of the Trade and Cooperation Agreement (TCA): Courts must consider retained/assimilated law alongside the TCA to ensure consumer protection, such as compensation for air passengers.

Future of Assimilated Law: A cautious approach will be taken regarding judgments under assimilated law, with no application of general EU principles post-REULA 2023.

Question 33

When can UK courts depart from retained or assimilated EU case law, and how does this power extend to courts besides the Supreme Court?

Answer 33

UK courts can depart from retained or assimilated EU case law in specific circumstances:

Initially limited to Supreme Court and High Court of Justiciary: The EUWA 2018 initially allowed only the UK Supreme Court and Scotland’s High Court of Justiciary to depart from retained EU case law, applying the test used to depart from domestic case law (Practice Statement [1966]).

Extended powers: Section 6(5A)–(5D) of the EUWA 2018, as amended by the Withdrawal Agreement Act 2020, empowered other courts, like the Court of Appeal, to depart from retained EU case law, applying the same Practice Statement principles.

Cautious approach: Courts are expected to be cautious when departing from retained case law to avoid undermining established reliance by individuals or businesses.

REULA 2023: Future changes may introduce a new test for departing from assimilated EU case law, but for now, the Practice Statement remains relevant.

Question 34

How has the SC and CoA’s power to depart from retained or assimilated domestic case law been used in practice?

Answer 34

UK courts, including the Court of Appeal, have the power to depart from retained or assimilated domestic case law under certain conditions:

Theoretical power: In theory, the Court of Appeal can depart from a Supreme Court judgment if it believes it is right to do so.

Limited in practice: Although this power exists, it has not been exercised in practice, making it an unlikely event.

Assimilated domestic case law: The same principles apply to assimilated domestic case law, with courts potentially applying the Practice Statement to depart from previous domestic judgments.

Question 35

What changes will REULA 2023 introduce regarding the departure from assimilated EU case law, and how might this affect UK courts?

Answer 35

Section 6 REULA 2023 introduces a new test for UK courts, including the Supreme Court and Court of Appeal, to use when deciding whether to depart from assimilated EU case law:
Non-binding foreign decisions: Courts will consider that foreign court decisions are not usually binding.

Changed circumstances: Courts will take into account any relevant changes in circumstances that may affect the assimilated EU case law.

Development of domestic law: They will consider the extent to which the assimilated EU case law restricts the proper development of UK domestic law.

Lower courts’ role: While lower courts cannot directly depart from assimilated EU case law, they may refer important points of law to higher courts for consideration, especially if the case has general public importance.

Question 36

What is the significance of the UK courts ceasing to be bound by CJEU judgments post-IP completion day under EUWA 2018?

Answer 36

After IP completion day, UK courts are no longer bound by principles or decisions of the CJEU:
- Persuasive effect only: While not binding, CJEU judgments made after IP completion day can have persuasive value in UK courts (EUWA 2018, s 6(2)).
- Assimilated EU case law: This only includes CJEU judgments handed down before IP completion day. Post-IP completion day CJEU judgments do not form part of assimilated EU case law.

Question 37

What ministerial powers does REULA 2023 grant regarding retained EU law and assimilated law?

Answer 37

REULA 2023 grants ministers extensive powers regarding retained EU law and assimilated law:

Restating law: Ministers could restate retained secondary EU law until 31 December 2023 and continue to have powers to restate assimilated law. (clarify, simplify, or update existing legal principles, statutes, or case law without changing their substance)

Reproducing rights: They can reproduce directly effective rights from retained EU law, like Article 157 TFEU, ensuring continuity.

Resolving ambiguities: Ministers can resolve legal ambiguities, remove doubts, and improve clarity in restated or assimilated law.

Example: The Aviation (Consumers) (Amendment) Regulations 2023 restated key principles from Regulation 261/2004, reflecting changes due to the end of EU law supremacy and ensuring clarity in passenger compensation rules.

Question 38

What powers do ministers have under REULA 2023 to revoke or replace retained EU law and assimilated law?

Answer 38

REULA 2023 provides ministers with powers regarding retained EU law and assimilated law:
- Revoking: Ministers can revoke retained EU law or assimilated law without replacement.
- Restating or replacing: They can revoke and restate law or replace it with new provisions that achieve similar objectives.
- No new burdens: Ministers cannot impose new regulatory burdens when replacing the law. These powers expire on 23 June 2026.

Question 39

What is the status of restated or replaced retained EU law/assimilated law under REULA 2023?

Answer 39

When ministers restate or replace retained EU law or assimilated law:
- Domestic law status: The restated or replaced law becomes domestic law, no longer part of retained or assimilated law.
- Statutory interpretation: The restatement is subject to normal domestic principles of interpretation and precedent, meaning assimilated EU case law will be merely persuasive, not binding.
- Potential for re-litigation: Restating or replacing the law could lead to relitigation of settled issues, causing uncertainty, delay, and expense.

Question 40

What are the key elements and scope of the Withdrawal Agreement between the UK and the EU (EU-UK Withdrawal Agreement)?

Answer 40

The Withdrawal Agreement, effective from 1 February 2020, outlines the terms of the UK’s exit from the EU.

It is legally binding, while the Political Declaration is not.

Key areas covered include:
- Citizens’ Rights: Protects rights for UK citizens in the EU and EU citizens in the UK, allowing them to live and work in their host states and apply for residence status.
- Financial Settlement: The UK must honour its financial commitments made as a Member State.
- Northern Ireland Protocol: Aims to prevent a hard border between Northern Ireland and the Republic of Ireland.
- Governance and Dispute Resolution: A joint committee facilitates oversight and resolution of disputes. If unresolved, disputes can be referred to an arbitration panel.

NOTE: The European Union (Withdrawal) Act 2018 (EUWA 2018) served as the initial legal framework for the UK’s withdrawal from the EU, ensuring that EU law was retained in UK law on “IP Completion Day.” It was later amended by the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020) to implement the terms of the Withdrawal Agreement between the UK and the EU (UK-EU Withdrawal Agreement).

Question 41

How is the Withdrawal Agreement applied in UK law, particularly regarding citizens’ rights?

Answer 41

Article 4 states that the provisions of the Withdrawal Agreement itself and the provisions of EU Law that it incorporates shall have the same effect in UK law as they produce in the EU and EU MS:
- Individuals can rely directly on provisions that meet the criteria for direct effect under EU law, particularly citizens’ rights.
- Section 7A of the EUWA 2018 allows enforcement of rights from the Withdrawal Agreement, ensuring it holds supremacy similar to the ECA 1972.
- Even though many EU laws on free movement are repealed, the Withdrawal Agreement provisions on citizens’ rights remain relevant.
- UK courts can make references to the CJEU for up to eight years post-transition, although this is discretionary.

Examples - The R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department case demonstrated the direct effect of the Withdrawal Agreement in declaring a part of the EU Settlement Scheme unlawful.
The AT v Secretary of State for Work and Pensions case confirmed the Charter of Fundamental Rights applies to EU citizens with pre-settled status, reinforcing their reliance on Withdrawal Agreement provisions.

Question 42

What specific protections and implications for citizens’ rights arise from the Withdrawal Agreement?

Answer 42

• The Withdrawal Agreement ensures that UK and EU27 citizens, along with their family members, retain their rights even if national legislation is flawed.
• EU citizens can enforce their rights in UK courts if the UK immigration legislation contradicts the Withdrawal Agreement.

Example: R (Independent Monitoring Authority) v Secretary of State for the Home Department case illustrated how EU citizens can challenge the Settlement Scheme based on direct rights from the Withdrawal Agreement.

The Northern Ireland High Court’s decision in Re Dillon highlighted the importance of the Victims’ Directive and the protections it affords, particularly regarding investigations into the Troubles, thus reaffirming the relevance of EU-derived rights post-Brexit.

Question 43

Provide a summary of the purpose of EUWA 2018 and REULA 2023.

Answer 43

EUWA 2018:
EUWA 2018 aimed to ensure legal
continuity and a functioning statute post- exit by taking a snapshot of EU law as it existed in the UK at the end of the transition period (defined as IP completion day) and converting it into ‘retained EU law’, a novel type of law with its own characteristics.

REULA 2023:
REULA 2023 made some significant changes that came into effect on 1 January 2024. REULA 2023 renamed retained EU law as ‘assimilated law’ and made changes to its status.

REULA 2023 gives relevant national authorities such as the UK Government and the devolved governments the power to reform secondary retained EU law and assimilated law by introducing secondary legislation to amend, revoke, restate and/or replace retained EU law and assimilated law.

Ministers can reproduce the legal effects associated with retained EU law/assimilated in restated EU law or assimilated law, including the effect of supremacy in
relation to specific enactments. The restated law may include relevant case law from the CJEU.

Question 44

Provide a summary of retained/assimilated law.

Answer 44

Assimilated law:
The main categories of assimilated law are:
* EU- derived domestic legislation (secondary legislation and primary legislation enacted to implement the UK’s EU obligations)
* Direct assimilated legislation (primarily EU Regulations and decisions)

Retained EU law kept a limited form of supremacy in that it prevailed over other legislation enacted pre- IP completion day. Conversely, legislation enacted after IP completion day prevailed over retained EU law. However, REULA 2023 abolished the principle of supremacy.

Question 45

Provide a summary of the EU-UK Withdrawal Agreement.

Answer 45

Although the Withdrawal Agreement covers a range of issues relating to the UK’s exit from the EU, it is the citizens’ rights provisions that practising lawyers are most likely to encounter.

The key point is that these provisions appear to have direct effect, and that means that EU citizens will be able to rely on them in national courts should domestic UK legislation fail to protect their rights adequately.