Amending Retained EU Law after Brexit

Emily Hancox

LERU Brexit Seminar

LERU Brexit Seminar


In this short blog post, I reflect on whether the EU Withdrawal Act 2018 (EUWA) adequately protects rights guaranteed by EU law from amendment by the UK government once the UK leaves the EU.

Photo credit: Jessica Taylor/UK Parliament

What is Retained EU Law?

The EUWA provides for the repeal of the European Community Act 1972 (ECA) on ‘exit day’ (i.e. 29 March 2019 or, if there is a withdrawal agreement, after the transitional period). The major consequence of repealing the ECA is that EU law will cease to apply directly in the UK and much of the domestic law adopted to implement the rights and obligations of EU law will lose its legal validity. Due to the broad reach of EU law, several gaps would emerge in the UK legal system if the UK took no further action. To prevent a legal vacuum emerging and to ensure continuity and legal certainty after exit day, the EUWA effectively takes a snapshot of the law in force immediately before exit day and provides for that law to remain in force as ‘retained EU law’.

Sections 2-4 of the EUWA set out what will become retained EU law post-exit day. There are several types of retained EU law reflecting the different ways EU law becomes part of the UK legal order. Section 2 covers EU-derived domestic legislation, which is the primary and secondary legislation that – before exit day – was necessary for EU law to take effect in the UK. Sections 3 and 4 bring within the concept of retained EU law those rules of EU law that were not part of Britain’s statue book pre-exit day, but instead took effect directly in the UK by virtue of the ECA. This includes those regulations, decisions, non-legislative acts and treaty provisions that were in force and directly effective before exit day.

Immediately after exit day the law in force in the UK will be largely similar to when the UK was a member of the EU. The major difference is that EU law will no longer bind the UK. What this means is that retained EU law will be subject to amendment by future Acts of Parliament and, in some circumstances, secondary legislation. In many instances, modifications to retained EU law will be necessary for that law to make sense in the UK post-Brexit. For this purpose, Section 8 of the EUWA grants powers to Ministers to amend retained EU law to deal with any ‘deficiencies’. As an example of such a deficiency, retained EU law may concerns matters that no longer have any practical application in the UK or that relates to EU institutions and agencies that the UK is no longer part of.

Protection from Amendment under the EUWA

One controversial aspect of the EUWA (among many) is that the EUWA does not prevent the amendment of retained EU law relating to rights. This has led to fears that the current level of rights protection could be rolled-back after Brexit. Sandra Fredman, Alison Young and Meghan Campbell note that ‘EU law operates as a constitutional protection of equality rights. Currently, if Parliament were to legislate contrary to equality rights protected by EU law, then this legislation could be disapplied.’ Amnesty International and Liberty, the UK Environmental Law Association and the Equality and Human Rights Commission have raised similar concerns in relation to other rights presently protected by EU law.

Despite not offering any special protection for rights derived from EU law, the EUWA does differentiate between different aspects of retained EU law in terms of the possibility of amendment. The EUWA creates a hierarchy of sorts in terms of how easy it is to amend certain types of retained EU law. The remainder of this blog post draws attention to how, from perspective of safeguarding rights, this hierarchy is not necessarily coherent.

In relation to EU-derived domestic legislation, the EUWA distinguishes different categories of retained EU law depending on their previous domestic status and – for secondary legislation – the Act of Parliament authorising their adoption. EU-derived domestic legislation already has the status of either primary or secondary legislation in domestic law and (by virtue of section 7(1) of the EUWA), continues to have the same domestic status after exit day. This has certain implications in terms of the possibility for amendment. Acts of Parliament implementing EU directives will continue to have the status of primary legislation and will only be amendable by further primary legislation or by a Henry VIII power. Secondary legislation adopted to give effect to EU law will continue to have the status of secondary legislation and will be amendable by both primary and secondary legislation. What complicates matters is that any statutory instruments amending secondary legislation originally adopted under s2(2) of the ECA must follow an enhanced scrutiny procedure. As a result, any amendments to measures passed under s2(2) of the ECA require greater Parliamentary scrutiny than measures adopted under the EUWA to amend other types of EU-derived domestic legislation (except in certain circumstances).

If one examines EU-derived domestic legislation in terms of the rights it protects, though, this differentiation does not make sense. The supremacy of EU law meant that, pre-exit day, it did not matter how EU law took effect in the UK. To implement directives, the British government relied upon the specific power in section 2(2) of the ECA (such as the rules on consumer rights), passed Acts of Parliament (such as the Equality Act 2010) and adopted other secondary legislation (such as the regulations passed under the Health and Safety at Work Act 1974). The regime established by the EUWA does not reflect the variety of different ways the UK gives effect to EU law rights domestically. As a result, it will be easier to amend secondary legislation implementing EU directives on workplace rights relating to health and safety than it is to amend secondary legislation implementing consumer rights passed under section 2(2) of the ECA.

The new categories of domestic law created by the EUWA exacerbate this incoherence. EU law that previously took effect directly under the EUWA now forms one of three new categories: delegated or implementing acts become ‘retained direct minor legislation’; regulations, decisions and Annexes to the EEA agreement become ‘retained direct principal legislation’; and other directly effective EU law, mostly directly effective Treaty provisions, becomes ‘retained EU law by virtue of section 4’. Retained direct minor legislation is akin to secondary legislation and is amendable by future secondary legislation. Retained direct principal legislation and retained EU law by virtue of section 4 are akin to primary legislation (and so cannot be amended by secondary legislation). However, the status is not wholly comparable since such retained EU law can be modified by secondary legislation so long as that ‘modification is supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation’ (Schedule 8).

To flag just one problematic consequence, statutory instruments passed under section 8 of the EUWA need not undergo enhanced scrutiny if they amend retained direct principal legislation. The resulting incoherence can be illustrated if one considers the EU consumer rights concerning dispute resolution. Some rights derive from the Alternative Dispute Resolution Directive (and were implemented by utilising the powers in section 2(2) of the ECA) while others derive from the Online Dispute Resolution Regulation and so took effect directly. The system of categorisation under the EUWA requires enhanced scrutiny for any amendments to the secondary legislation implementing the directive but not for any modifications to the rights in the Regulation.

Edinburgh Europa Institute LogoEmily Hancox
University of Edinburgh/European University Institute

Emily Hancox is a PhD candidate at Edinburgh Law School and a Max Weber Fellow at the European University Institute. Her researchinterests lie in EU and constitutional law, focusing specifically on questions of norm inter-relationship.

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Please note that this article represents the view of the author(s) alone and not European Futures, the Edinburgh Europa Institute or the University of Edinburgh.

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