Retained EU & Assimilated Law

Question 1

what is assimilated law?

Answer 1

Assimilated law is the new name for the law that was previously known as retained EU law (REUL)

Question 2

what are the main categories of assimilated law?

Answer 2

• EU-derived domestic legislation
• Direct assimilated legislation

Question 3

what is EU-derived domestic legislation?

Answer 3

domestic secondary legislation and primary legislation enacted to implement the UK’s EU obligations before the UK left the EU. This is the term for the laws that remain in force.

Question 4

what is direct assimilated legislation?

Answer 4

primarily EU Regulations and decisions

Question 5

what did the EU Withdrawal Act 2018 do?

Answer 5

converted EU law to retained law so that is would apply in the UK until after Brexit

Question 6

what is the IP completion day?

Answer 6

this is the end of the transition period, the date is 31 December 2020

Question 7

what is retained law?

Answer 7

law that was in force immediately before the end of the transition period (i.e. IP completion day)

this will remain in force despite the UK having left the EU

Question 8

what would have happened if EU derived domestic legislation had not been retained?

Answer 8

it would have fallen away at the end of the transition period and left big gaps in law

Question 9

what does s3 of the EU withdrawal act do?

give an example

Answer 9

it converts some direct EU legislation into UK law

s3 ensures that where necessary, EU legislation continues to have effect in the UK legal system and is now domestic law

i.e. the regulation which protects airline passengers and requires compensation be paid for flight delays

Question 10

what did s4 of the EU withdrawal act do and how has this changed?

give an example

Answer 10

it preserves certain rights arising under s2(1) EUWA 1972 i.e. directly effective rights contained within EU treaties and which confer rights directly on individuals which they can enforce before national courts without the need for complementing national measures i.e. the right for men and women to receive equal pay under Art 157 of TFEU

REUL 2023 removed this piece of retained law (NB: consider time frames)

Question 11

what is the position regarding directives and EU Law?

Answer 11

as a general rule, these are excluded from retained law as they are implemented into national law by domestic legislation which is preserved as EU derived domestic legislation

Question 12

notwithstanding the general position, when can directives have direct effect?

Answer 12

if they have not been implemented or implemented incorrectly, but only vertically against the state or state bodies

Question 13

what does s7(1) EUWA provide?

Answer 13

EA law retained under s2 of the Withdrawal Act has the same same status as it does pre-IP completion day either as primary or secondary legislation

this does not apply to law retained under s3 & 4 because this is not primary or secondary legislation

Question 14

what does s6(3) of the Withdrawal Act provide?

Answer 14

where there is a question about the meaning of retained EU law, it will be determined by the UK court in accordance with relevant retained case law and and retained general principles of EU law

Question 15

what does retained case law consist of?

Answer 15

retained domestic case law and retained EU case law, both refer to decisions of the court pre-IP completion day

Question 16

What effect do pre-IP completion day judgments of the Court of Justice have?

Answer 16

they remain binding on al UK courts apart from the UK Supreme Court and High Court of Judiciary in Scotland

Question 17

What effect do post-IP completion day judgments of the Court of Justice have?

Answer 17

the UK courts can consider them, but are not bound by them

Question 18

what do retained general principles of EU law include?

Answer 18

proportionality, equality, fundamental rights and subsidiarity

Question 19

what is the effect where there is failure to comply with a retained principle?

Answer 19

none. This cannot give rise to a right of action.

Question 20

What effect does the Charter of Fundamental Rights have on the UK?

Answer 20

This incorporates many of the general principles, but it has not formed part of retained EU law

Question 21

what has the withdrawal act excluded in terms of liability?

Answer 21

EU law gives individuals the right to claim damages from another member state in certain circumstances. This right has been excluded under the Withdrawal Act.

Question 22

what does s8 of the Withdrawal Act allow?

Answer 22

it gives UK government ministers and devolved administrations the power to make secondary legislation to correct ‘deficiencies’ in EU law

Question 23

what is the definition of a ‘deficiency’

Answer 23

provisions:
- that have no practical application after the UK left the EU
- on functions that were carried out in the EU on the UK’s behalf (i.e. by an EU agency)
- arrangements on rights between the UK and another member state & any other arrangements that are no longer in place / appropriate

Question 24

when can the government rely on s8 EUWA to correct a deficiency?

Answer 24

the power to correct can only be used to correct deficits arising from the UK’s withdrawal from the EU, it cannot be used to make changes to retained EU law

Question 25

what is now the position regarding supremacy of EU law?

Answer 25

EU law no longer has supremacy over UK law, but retained EU law will have supremacy in limited circumstances

Question 26

what happens when a conflict occurs between EU retained law and pre-IP completion day legislation?

Answer 26

retained EU law will prevail over the pre-IP completion day law

Question 27

can retained EU law be amended / repealed?

Answer 27

yes

Question 28

can changes to retained EU law be challenged?

Answer 28

yes

Question 29

how are challenges to changes to retained EU law made?

Answer 29

primary legislation can only be challenged if it contravenes other provisions of EU law that should take precedence

secondary legislation can also be challenged on this basis, but also through judicial review

Question 30

how does the withdrawal Act limit the basis of challenge to changes of EU retained law?

Answer 30

The Withdrawal Act provides that no provision of retained EU law can be challenged on or after IP completion day on the basis that an EU instrument was invalid unless the CGEU has ruled an EU instrument to be invalid prior to IP completion date

in other words, new challenges cannot be based on the invalidity of EU instruments unless previously ruled so by the CJEU.

Question 31

what is the difference between the EU Withdrawal Agreement 2019 and EU Withdrawal Act 2018?

Answer 31

The 2019 agreement set out the terms for the UK’s exit

it is legally binding in international law

it covers a number of issues i.e. citizens rights (inc. family citizen rights), financial settlement (i.e. contributions to EU budget), Northern Ireland Protocol, governance and dispute resolution

Question 32

what is the effect of the Withdrawal Agreement 2019?

Answer 32

The provisions have direct effect.

This means EU citizens will be able to rely on them in national courts, should UK domestic legislation fail to protect them adequately

Question 33

What did the Retained EU Law 2023 Act do?

Answer 33

amended the basis of retained EU law to create a replacement category called ‘assimilated law’

it changed the way UK courts are to interpret assimilated law

this ends the special status of retained EU law

Question 33

When does the 2023 Act take effect from?

Answer 33

1 January 2024

Question 33

what is the purpose of the 2023 Act?

Answer 33

to reclaim to sovereignty of parliament

Question 34

what is retained EU law?

Answer 34

a category of UK law that was created by s 2 - 4 of EUWA at the end of the transition period based on EU law which applied to the UK at the time

Question 35

what was the effect of retained EU law?

Answer 35

it incorporated EU law into domestic law which stopped mechanisms such as direct effect and direct applicability taking effect

Question 36

explain REUL 2023 and time period

Answer 36

changes introduced by REUL only apply from 1 Jan 2024 onwards, i.e.:

acts or events before the end of 2023 are still called retained EU law and EU-derived features remain in tact. Retained law would apply.

acts of events after 1 Jan 2024, assimilated law applies.

Question 37

what is EU-derived domestic legislation?

Answer 37

the domestic legislation which continued to be domestic law under section 2 of the EUWA, such as UK primary and secondary legislation which gave domestic effect to EU directives and other EU law immediately before the end of the transition period.

Question 38

what is retained direct EU legislation?

Answer 38

the EU-derived legislation which was converted into domestic law by section 3 of the EUWA, such as UK versions of EU regulations and EU decisions which were directly applicable in domestic law immediately before the end of the transition period

Question 39

what (were) s4 retained EU law?

Answer 39

the EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures which were converted into domestic law by section 4 of the EUWA, such as rights and obligations derived from some EU treaties and EU directives which were directly effective in domestic law immediately before the end of the transition period.

Question 40

what is the position regarding s4 EUWA rights under REUL?

Answer 40

Section 4 was repealed at the end of 2023 by section 2 of the REUL Act, but is still enforceable after 2023 in relation to anything occurring before the end of 2023

this means that no rights retained as a result of s4 are enforceable in UK courts from 1 Jan 2024. Therefore, individuals (inc. businesses) cannot rely on directly effective rights arising under treaty articles or directives before UK courts

Question 41

what is the difference between EU law and retained EU law?

Answer 41

EU law is created etc by the EU. Whereas, retained EU law is a category of UK law that was created by UK legislation at the end of the transition period (and is now called assimilated law)

Question 42

what were the categories of retained EU law?

Answer 42

• EU-derived domestic legislation
• Direct assimilated legislation
• Rights arising under s2(1) ECA 1972 (this has been repealed)

Question 43

under REUL, what is the position regarding supremacy of EU law?

Answer 43

s3 provides for abolition of supremacy of retained EU law from 31 Dec 2023

EU law no longer has priority over UK domestic law

Domestic legislation, regardless of when it was passed, now has precedence over assimilated direct legislation

Question 44

prior to REUL, what was the position when there was a conflict between domestic law and EU retained law?

Answer 44

when domestic legislation conflicted with retained EU law, UK courts had to give priority to retained EU law

This ended with REUL 2023

Question 45

what is the position regarding interpretation under REUL?

Answer 45

REUL removes the principle of consistent interpretation

This means the requirement to interpret UK laws in line with EU law no longer applies to domestic law passed at any time

However, courts can still refer to EU law as a historical guide. EU law is now treated as an external aid.

Question 46

although the principle of supremacy and general principles have been abolished, what can minsters do?

Answer 46

ministers can make statutory instruments to recreate their effect in a limited form.

therefore, the minister could specify that this would prevail over another specific enactment, but not that it prevails over all enactments generally.

Question 47

what is an incompatibility order?

Answer 47

an order issued by the court where there is a conflict between retained direct EU legislation and domestic legislation

the court has wide discretion to set out the incompatibility, but courts cannot change the order of priority of conflicting pieces of law

Question 48

what is the position as to departing from CJU decisions under REUL in relation to the Supreme Court and Court of Appeal?

Answer 48

s6 sets out a non-exhaustive list of factors the Supreme Court and court of appeal must take into account when deciding whether to depart from EU retained case law:
1) decisions of forgeign courts are not usually binding
2) any change of circumstances relevant to retained EU case law
3) the extent to which EU case law restricts the property development of domestic law

NB: lower courts will not be able to depart from assimilated EU case law

Question 49

what was the position as to departing from CJE case law until 31 December 2023?

Answer 49

all courts other than the Supreme Court and Court of Appeal were bound by pre-implementation completion day judgments of the CJEU

the Supreme Court and Court of appeal could depart from this case law where it appeared right to do so

Question 50

what is the position as to departing from CJU decisions under REUL in relation to the lower courts?

Answer 50

they cannot depart from assimilated EU case law, but can refer the case to a higher court for a decision if:
1. it is bound by the retained case law; and
2. it considers that the point or points of law are of general public importance

law officers of the UK government and devolved administrations can also do this

The law must be relevant to the case the court is hearing

Question 51

what is the position regarding departing from retained domestic case law?

Answer 51

higher courts will apply the following test:

1. extent to which the retained domestic case law is determined or influenced by a retained EU case law from which the court has departed or would depart; and
2. it considers that the point or points of law are of general public importance

Question 52

what can ministers restate / reproduce?

Answer 52

ministers have the power to restate or reproduce secondary retained EU law (i.e. EU law that is not contained in primary legislation)

ministers can also reproduce directly effective rights that became EU retained law by virtue of s4 EUWA 2018

in doing this, they can resolve ambiguities, resolve doubts or anomalies or facilitate improvement in clarity

Question 53

how is ministers restatement powers limited?

Answer 53

they cannot reproduce into domestic legislation the principle of supremacy of general principles, but they can reproduce the effect that is equivalent to them

this enable ministers to achieve the same policy outcome as retained EU law / assimilated law being restated

Question 54

what powers do ministers have in terms of revoking?

Answer 54

they can revoke retained/assimilated EU law without replacement or replace it with an appropriate provision that achieves the same or similar objectives as the provisions being revoked

they cannot impose no regulatory burdens

these powers expire in June 2026

Question 55

what is the effect where ministers have used their powers to restate or replace retained/assimilated EU law?

Answer 55

the relevant law will be contained in the domestic statutory instrument and will not form part of retained/assimilated EU law

therefore, the statutory instrument carryout out the restatement etc is domestic law and subject to normal domestic principles and not principles governing assimilated law