Assimilated Law Flashcards
What was the effect of the Retained EU Law (Revocation and Reform Act 2023) (the 2023 Act)?
This Act amended the basis of retained EU law to create a replacement category of law called Assimilated Law
Significant changes take effect from 1st Jan 2024
The Act aims to reclaim primacy to Acts of Parliament and restore Parliamentary Sovereignty
Enables the UK government to update outmoded legislation in response to various ongoing reviews
EU law remains a significant source of law
What ‘sun-setting provisions’ were introduced by the 2023 Act?
S1 of the 2023 Act revoked 587 instruments of retained EU law listed in Schedule 1 of the 2023 Act as of 31st December 2023
List is not definitive
- Some were taken off the list by way of statutory instruments
- Other legislation contains sun-setting provisions (Procurement Act 2023 revoked some instruments of retained EU law in relation to public procurement)
What steps does the 2023 Act take to revoke retained EU rights?
S2 2023 Act repeals s4 EUWA
- No rights at s4 EUWA enforceable in UK law from 31st December 2023
- This means individuals and businesses cannot rely on directly effective rights arising from Treaty articles or directives before UK courts
- Someone who suffered harm under a Directive before end of 2023 can bring a claim
However, it is possible for the government to codify rights retained at the end of the transition period under s4 (implementation period completion day)
What impact does the 2023 Act have on supremacy of Retained EU Law?
S3 2023 Act abolishes the supremacy of Retained EU law from 31st December 2023
- Previously, priority was given to retained EU law in conflict with domestic legislation
- Ends supremacy of EU law, whenever passed or made
Sets out new priority rule for retained direct EU legislation
- 1) This must be read and given effect, as far as possible, in a way which is compatible with all domestic enactments
- 2) Retained direct EU legislation is subject to all domestic enactments, so far as it is incompatible with them
How does the abolition of EU law supremacy affect interpretation of EU legislation?
The abolition of Retained EU Law supremacy has been criticised for creating legal uncertainty, as it retrospectively alters effect of domestic legislation in a way that could not have been foreseen at the time
2023 Act also removes principle of consistent interpretation in relation to all domestic legislation
- UK courts no longer required to interpret UK regulations enacted to implement an EU directive, consistently with that directive
- The principles of statutory interpretation remain valid
- The UK courts will likely take the Directive into account as an extrinsic aid to interpretation
How can ministers recreate the effect of EU law supremacy?
Ministers can still recreate the effect of EU primacy by statutory instrument, by stating that a provision of retained direct EU legislation will prevail over a specific enactment, but not all enactments generally
What is Retained EU case law and legislation now called?
Retained direct EU legislation is renamed Direct Assimilated Legislation
Retained EU case law is renamed Assimilated EU Case Law
Under the 2023 Act, when might a incompatibility order be needed?
S8 2023 Act – if there is a conflict between retained direct EU legislation and domestic legislation, court must issue an incompatibility order
- Courts have considerable discretion in setting out the legal consequences of the incompatibility order, but they cannot change the priority order of the conflicting pieces of law
When can the Supreme Court and Court of Appeal depart from retained EU case law?
S6 2023 Act – sets out non-exhaustive factors that the Supreme Court and Court of Appeal must consider when deciding whether to depart from retained EU case law
- a) decisions of foreign courts are not usually binding
- b) any change of circumstances relevant to retained EU case law
- c) extent to which retained EU case law restricts proper development of domestic law
Intention may be for these higher courts to depart more often
Can lower courts depart from Retained EU case law?
Lower courts cannot depart from retained EU case law, but can refer to a higher court for its decision if:
- a) It is bound by the retained case law, and
- b) It considers that the points of law are of general public importance - The points of law must be relevant to the case and meet certain criteria
Law officers of UK government and devolved administrations can also refer points of retained EU case law to higher courts
When can higher courts depart from retained domestic case law arising from EU law?
Higher courts will apply a similar test in deciding to depart from retained domestic case law arising from EU law
- It only differs on the first factor, which refers to the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.
Explain a minister’s power to restate in relation to assimilated law
Ministers have the power to restate retained secondary EU law (all retained laws that are not contained in primary legislation)
- Ministers have equivalent powers regarding assimilated law
Explain a minister’s power to reproduce in relation to assimilated law
Ministers can also reproduce directly effective rights that became retained EU law by virtue of s4 EUWA
- Article 157 TFEU (right to equal pay) has been restated so continues to give citizens rights in this regard
Ministers can only reproduce an effect similar to EU primacy - by stating that a provision of retained direct EU legislation will prevail over a specific enactment, but not all enactments generally
Explain a minister’s power to remove in relation to assimilated law
Ministers can remove ambiguities, doubts or anomalies in restating retained EU law
Explain a minister’s power to revoke and replace in relation to assimilated law
Ministers can also revoke assimilated law, with or without replacement or with restatement
- In replacing assimilated law, they must not impose new regulatory burdens
The replacement or restatement of law will be contained in a domestic statutory instrument and not form part of assimilated law
- Subject to domestic principles of statutory interpretation and precedents
- Even if restated verbatim, retained EU case law will be persuasive and not binding
These powers expire on 23rd June 2026
What is the overall impact of the 2023 Act?
UK government has not analysed the likely impact of ending the principle of supremacy of retained EU law and its effects on individuals and businesses in particular cases
Assimilated law remains important source of rules for consumer rights, data protection, health and safety, VAT and employment law
Powers given to ministers has been criticised as too wide ranging, due to lack of effective parliamentary scrutiny
- Parliament will need to pass an Act to change primary retained EU law
Give a summary of the main categories of assimilated law
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.
Give a summary of legislative powers granted by the Retained EU Law Act 2023
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.
Give a summary of the Withdrawal Agreement
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
- They override conflicting UK statute
