Gavin Howe
The UK implemented 52,741 laws as a result of EU legislation between 1990 and 2017. Following Brexit, the UK government retained some EU laws to ensure legislative continuity. This was done through the European Union (Withdrawal) Act 2018, which took a snapshot of EU laws applicable in the UK as of 31 December 2020. These retained EU laws, now called assimilated laws, are being reviewed and reformed by the UK government to fit the country's new status outside the EU. The UK's relationship with the EU after Brexit is outlined in the European Union (Future Relationship) Act 2020, which includes agreements such as the Trade and Cooperation Agreement.
| Characteristics | Values |
|---|---|
| Total EU laws introduced in the UK since 1990 | 52,741 |
| EU laws retained in the UK after Brexit | 150,000 (officially), with only a few thousand having a practical impact |
| Examples of EU laws retained in the UK | EU's General Data Protection Regulation, UK's Working Time Regulations, and the right not to be discriminated against on grounds of nationality |
| Examples of EU regulations that impact UK laws | EU Emissions Trading Scheme, EU Climate and Energy "20-20-20" Package, Working Time Directive, Temporary Agency Workers Directive |
| EU laws that ceased to apply in the UK after Brexit | EU Directives |
| EU laws that continue to apply in the UK in specific circumstances | EU legislation continues to apply in Northern Ireland to maintain cooperation with the Republic of Ireland and avoid a hard border |
| Status of new EU case law in the UK after Brexit | Not binding on UK courts; UK courts apply domestic law principles of interpretation instead |
| Impact of retained EU laws on UK courts | Uncertainty and potential for increased litigation as people seek clarity on the law |
| UK government's approach to retained EU laws | The government is committed to reforming assimilated law to foster a pro-business environment and streamline the regulatory framework |
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What You'll Learn
Retained EU law
The UK's departure from the European Union has not resulted in the elimination of all EU-derived laws. A significant proportion of them have been retained as domestic law, referred to as "retained EU law" or REUL. The concept of retained EU law was created by the European Union (Withdrawal) Act 2018, which took a snapshot of EU law as it applied to the UK at the end of the Brexit transition period on December 31, 2020. This ensured legislative continuity and certainty.
The Retained EU Law (Revocation and Reform) Act 2023 introduced further changes to retained EU law. It removed the sunset clause, which would have automatically revoked most retained EU laws at the end of 2023. Instead, a revocation schedule was implemented, setting out at least 600 pieces of retained EU law. Any laws not listed in this schedule will be automatically retained. The Act also changed the way courts can depart from retained EU case law and modified certain types of retained EU law.
From 2024, the term "retained EU law" will be replaced by "assimilated law" in UK legislation. Assimilated law is not interpreted in line with EU principles of interpretation. The UK government remains committed to reforming assimilated law to foster a pro-business environment and support various key strategies.
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Assimilated law
The UK's relationship with the EU changed after the Brexit transition period ended on 31 December 2020 ("IP completion day"). EU legislation that applied directly or indirectly to the UK before this date was retained in UK law as a novel form of domestic legislation known as 'retained EU legislation' or 'REUL'. This included all EU-derived UK legislation, EU Regulations, directly applicable EU Treaty articles, relevant EU case law, EU Decisions, and certain general principles of EU law.
After the end of 2023, 'retained EU law' or 'REUL' became known as 'assimilated law' under the Retained EU Law (Revocation and Reform) Act 2023. This Act gave ministers the power to amend or revoke 'retained EU laws' more easily. Assimilated law is interpreted differently from REUL, and the government remains committed to reforming it to foster a pro-business environment through a streamlined regulatory framework.
The REUL Act requires the government to update its public database of REUL, now called the retained EU law/assimilated law dashboard, and to present a report every six months until June 2026, the tenth anniversary of the Brexit referendum. The dashboard provides information on the amount of assimilated law, where it sits across UK government departments, and the actions taken to either reform, revoke or retain it.
The first REUL report, published on 22 January 2024, indicated that more than 2,000 pieces of REUL had been revoked or reformed by the end of 2023. The updated dashboard listed 6,757 pieces of REUL/assimilated law, with nearly 65% remaining unchanged, around 12% amended, about 22% repealed, 0.6% replaced, and 0.9% expired. The Labour government has not set a quantitative target for further repeal and reform of assimilated law, marking a shift in approach from its Conservative predecessor.
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Northern Ireland Protocol
The Northern Ireland Protocol (NIP) is a protocol to the Brexit withdrawal agreement that sets out Northern Ireland's post-Brexit relationship with both the EU and Great Britain. The Withdrawal Agreement, including the Protocol, came into effect on 1 January 2021. The Protocol's arrangements allow Northern Ireland, but not the rest of the UK, to remain in the EU single market for goods. This ensures the maintenance of an open border between Northern Ireland and the Republic of Ireland.
The Protocol creates a de facto customs border in the Irish Sea between Northern Ireland and Great Britain. This means that goods coming into Northern Ireland from Great Britain must provide paperwork to show they comply with relevant EU laws or that they are not intended to move beyond Northern Ireland. Checks may also be carried out to ensure compliance. The Protocol ensures there are no physical checks on goods that move between Northern Ireland and the Republic of Ireland (and the rest of the EU).
The Northern Ireland Protocol was amended by the Windsor Framework, which came into effect on 24 March 2023. The Windsor Framework was agreed upon by the EU and UK to address concerns of Ulster Unionists about the Protocol. Despite these changes, the Democratic Unionist Party (DUP) refused to accept the Framework until further adjustments were agreed upon on 31 January 2024.
Under the terms of Article 18, the Northern Ireland Assembly has the power to decide whether to terminate or continue the Protocol arrangements after 31 December 2024. If consent is given, the question may be put again after four years. If consent is not given, the arrangements would cease to apply two years later, and alternative proposals would be made to avoid a hard border on the island of Ireland.
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EU directives
Directives can be adopted following a legislative procedure, by the Council of the European Union and the European Parliament under the ordinary legislative procedure, or only by the Council under the special legislative procedures. A directive may also be adopted by means of a non-legislative procedure.
Directives must be transposed by EU Member States so that they become law in those states. This is achieved by adopting a law to transpose the directive, which must be communicated to the European Commission. This national measure must achieve the objectives set by the directive and transposition must take place by the deadline set when the directive is adopted (generally within 2 years).
If a country does not transpose a directive, the Commission may initiate infringement proceedings and bring the country before the Court of Justice of the European Union. The Court of Justice also allows individuals, under certain conditions, the possibility of obtaining compensation from the state for directives whose transposition is insufficient or delayed.
Examples of EU directives include:
- Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising
- Directive 85/374/EEC: Product liability directive
- Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests
- Directive 2013/11/ΕU: Directive on alternative consumer dispute resolution
- Directive 83/349/EEC: Seventh Directive on the consolidated accounts of companies with limited liability
- Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006: Eighth Directive on statutory audits of annual accounts and consolidated accounts
- Directive 2013/34/EU: Non-financial reporting directive
Following Brexit, EU directives ceased to apply in the UK from 11 pm on 31 December 2020. However, the UK already had measures on its statute books in all areas covered by EU directives, as EU directives must be implemented through national legislation. The European Union (Withdrawal) Act 2018 expressly preserved all EU-derived domestic legislation, including all UK legislation implementing EU directives.
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UK-EU trade agreements
The UK and the EU have a complex relationship when it comes to the implementation of EU law in the UK. While the UK is no longer a member of the EU following Brexit, there are instances where EU law continues to apply in the UK to varying degrees. This is particularly evident in the area of trade, where the two blocs have negotiated and agreed on specific arrangements to govern their economic relationship.
The EU-UK Trade and Cooperation Agreement (TCA) is a pivotal agreement that outlines the trade relationship between the UK and the EU. This agreement was signed on 30 December 2020 and came into force on 1 May 2021, after the completion of ratification processes on both sides. The TCA provides for free trade in goods and limited mutual market access in services, as well as cooperation in a range of policy areas. It covers areas such as trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination, and law enforcement.
The TCA also establishes a framework for law enforcement and judicial cooperation in criminal and civil law matters. It recognises the need for strong cooperation between authorities in fighting cross-border crime and terrorism. Additionally, the agreement enables the UK's continued participation in select EU programmes, such as Horizon Europe, during the period from 2021 to 2027, subject to the UK's financial contribution to the EU budget.
The UK's relationship with the EU regarding trade and cooperation is also influenced by the Northern Ireland Protocol. This protocol sets out the circumstances in which EU legislation continues to apply in Northern Ireland to maintain cooperation with the Republic of Ireland and avoid a hard border. The Withdrawal Agreement, including the Northern Ireland Protocol, ensures that EU legislation remains relevant in specific areas of the UK's relationship with the EU.
In summary, while the UK has withdrawn from the EU and is no longer bound by the full scope of EU law, the two parties have negotiated comprehensive agreements, including the TCA, that outline their ongoing relationship. These agreements cover a wide range of topics, including trade, cooperation, law enforcement, and participation in specific EU programmes. The implementation of these agreements ensures a degree of continuity and cooperation between the UK and the EU, even after Brexit.
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Frequently asked questions
Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. It took a 'snapshot' of EU law as it was applied in the UK on 31 December 2020, cutting and pasting it into the UK's domestic legal system.
The UK government has committed to reforming retained EU law, now known as 'assimilated law', to support various strategies, including the UK's modern Industrial Strategy and Trade Strategy. The government scrapped the sunset clause, which would have revoked most retained EU laws at the end of 2023, opting instead for a revocation schedule.
New case law from the EU courts after Brexit is not binding on UK courts. UK courts will apply traditional domestic law principles of interpretation, which may lead to uncertainty and increased litigation as people seek clarity. Lower courts can refer points of law to the Court of Appeal.
The Northern Ireland Protocol outlines the circumstances in which EU legislation continues to apply in Northern Ireland to maintain necessary conditions for cooperation with the Republic of Ireland and avoid a hard border. The UK accepted that EU state aid rules would apply to Northern Ireland as part of the Withdrawal Agreement.
