Uk-Eu Laws: What's The Deal Now?

The UK's exit from the European Union has not resulted in the complete abandonment of EU-derived law. A significant portion of it has been retained, though the term retained EU law has been replaced by assimilated law in UK legislation as of 2024. This body of law includes domestic law related to former EU obligations, directly applicable EU legislation, and other rights and principles in EU law with direct effect in the UK. While the UK is now free to amend or revoke these laws, they continue to play a significant role and are subject to ongoing revision and updates.

The Northern Ireland Protocol

The Protocol's arrangements, under which Northern Ireland but not the rest of the UK remains in the EU single market for goods, allow the maintenance of the open border between Northern Ireland and the Republic of Ireland. The establishment of the open border was a key aspect of the Northern Ireland Peace Process and Good Friday Agreement which ended the Northern Ireland Conflict. The Protocol instead creates a de facto customs border in the Irish Sea between Northern Ireland and Great Britain.

The Protocol's terms were negotiated shortly before the 2019 general election and concluded immediately after it, in December of that year. The withdrawal agreement as a whole, including the protocol, was ratified in January 2020. The Protocol came into force on 1 January 2021.

In February 2023, the European Commission and the UK government reached a political agreement in principle on what is now known as the Windsor Framework. The Windsor Framework was designed to address the problem of the movement of goods between the European Single Market and the United Kingdom in the current Northern Ireland Protocol. It introduced green and red lanes to reduce checks and paperwork on goods that are destined for Northern Ireland only, and separate them from goods at risk of moving into the EU Common Market. It also includes a number of agreements on medicine control, VAT and alcohol duty.

EU Regulations

Section 3 of the European Union (Withdrawal) Act 2018 brought the entire text of all relevant EU Regulations onto the UK statute book. The types of changes made are similar to those made in relation to EU Directives. They largely came into effect using statutory instruments that were made before 11 pm on 31 December 2020 but took effect after that date.

The UK government has also published and updated a Retained EU Law Dashboard listing the status of more than 4,000 legislative instruments. By July 2024, the dashboard held a total of 6,735 individual pieces of retained EU law, concentrated over 400 unique policy areas.

Retained EU Law (Revocation and Reform) Act 2023

The Retained EU Law (Revocation and Reform) Act 2023 has made the following changes regarding retained EU Regulations:

• Where there is a conflict, domestic legislation takes precedence over any retained EU Regulations.
• The terminology has changed: "retained direct EU legislation" is now "assimilated direct legislation".

EU Directives

Directives are transposed into national legislation through a process called 'transposition', which translates an EU directive into national law. Each directive has a deadline for its transposition. Once transposed into national law, individuals may assert their rights with respect to third parties and enforce them in national courts. For example, the 2010 Directive on Parental Leave was transposed into UK law through the Parental Leave (EU Directive) Regulations, which came into force on 8 March 2013.

Directives have to be implemented through national legislation, meaning that the UK already had measures on its statute book in all the areas covered by EU Directives. Section 2 of the European Union (Withdrawal) Act 2018 expressly preserved all EU-derived domestic legislation, including all UK legislation implementing EU Directives.

Directives are indirectly applicable as law in EU member states. This means that when the UK was a member state, it made its own domestic legislation to give these laws force in the UK, often by making Statutory Instruments.

The UK's departure from the EU has not resulted in all EU-derived law being discarded. A significant proportion of it has been retained, including EU Directives. The Retained EU Law (Revocation and Reform) Act 2023 has introduced some changes in terminology, and the term "retained EU law" has been replaced by "assimilated law" in UK legislation.

The Northern Ireland Protocol of the Withdrawal Agreement provides that certain aspects of EU law, including some EU Directives, continue to apply "to and in the United Kingdom in respect of Northern Ireland". This reflects Northern Ireland's unique status, which continues to benefit from free movement of goods with the EU.

The UK government has retained some UK legislation derived from EU Directives with either no amendments or only minor adjustments. Examples include the Working Time Regulations 1998, which impose minimum standards on working hours, paid holiday, and rest periods, and the Commercial Agents (Council Directive) Regulations 1993, which give agents the right to claim post-termination payments.

However, numerous changes were necessary to make the legislation applicable outside the EU. References to EU supervisory institutions in financial services legislation derived from EU Directives have been replaced with references to UK bodies such as the Financial Conduct Authority or the Bank of England.

The UK government has also repealed about 450 UK measures derived from Directives, out of over 3800, which equates to about 12% of the total. The impact of this is debatable, as some of the repealed measures were already redundant or had been superseded by more recent legislation.

The Retained EU Law (Revocation and Reform) Act 2023 has made changes to how courts can interpret and depart from retained EU case law. It introduces a new test for departing from retained case law, which could result in a large amount of law being changed in a short period, compromising legal clarity and certainty for individuals and businesses.

EU Treaty Articles

The UK's departure from the EU has not resulted in the complete abandonment of EU-derived law. A significant proportion of it has been retained and is now referred to as "assimilated law". This includes directly applicable EU Treaty Articles.

The vast majority of EU Treaty Articles were not retained by the UK, with two exceptions:

• As part of the Withdrawal Agreement, the UK accepted that the state aid rules of the EU Treaty would apply in respect of Northern Ireland.
• Where an EU Treaty Article created rights that individuals and businesses could rely on directly in courts, the European Union (Withdrawal) Act 2018 preserved those rights. For example, the right contained in Article 157 relating to equal pay for equal work between men and women.

However, from 2024, it is no longer possible to rely on any of these rights. The Retained EU Law (Revocation and Reform) Act 2023 repealed the section of the European Union (Withdrawal) Act 2018 that allowed for this. The UK Government has, however, legislated to preserve the effect of Article 157 on equal pay for equal work between men and women, so as not to reduce employees' rights.

EU Case Law

The UK's departure from the European Union has not resulted in the complete abandonment of EU-derived law. A significant portion of it has been retained, including EU case law.

The European Union (Withdrawal) Act 2018 created a new concept within UK law: retained EU law. This act took a 'snapshot' of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. This included all relevant EU case law.

The Retained EU Law (Revocation and Reform) Act 2023 has since introduced some changes in terminology. For instance, the term "retained EU law" has been replaced by "assimilated law" in UK legislation. This new term should be used when referring to EU-derived law in formal documents such as contracts or litigation pleadings.

The UK courts are no longer bound by EU case law decided after 31 December 2020, but they may still consider it if it is relevant to the matter at hand. The Supreme Court and Court of Appeal are also no longer bound by retained EU case law, but they must apply the same test as they would when deciding to depart from their own case law.

The Retained EU Law Act will change the way courts can depart from retained EU case law. Clause 7 introduces a new test for departing from EU case law, which could result in a large amount of law being changed in a short space of time. This would compromise the legal clarity and certainty that individuals and businesses rely on when conducting their affairs.

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