Gavin Howe
The UK's exit from the European Union has not resulted in the removal of all EU-derived laws. A significant portion of EU law has been retained and incorporated into UK law as 'retained EU legislation', as outlined in the European Union (Withdrawal) Act 2018. This body of 'retained EU law' or 'assimilated law' includes three categories: domestic law related to former EU obligations, directly applicable EU legislation in the UK, and other rights and principles in EU law with direct effect in the UK. While the UK can now amend and revoke these laws independently, the Northern Ireland Protocol ensures that certain EU laws continue to apply in Northern Ireland to maintain cooperation with the Republic of Ireland and avoid a hard border.
| Characteristics | Values |
|---|---|
| EU legislation in the UK before 11:00 pm on 31 December 2020 | Retained in UK law as 'retained EU legislation' |
| EU legislation after 31 December 2020 | 'Retained EU law' renamed 'assimilated law' |
| EU legislation in Northern Ireland | Continues to apply under the Northern Ireland Protocol |
| EU Directives | Indirectly applicable in the UK, requiring domestic legislation |
| EU Regulations | Directly applicable throughout the EU |
| EU case law post-Brexit | Not binding on UK courts |
| EU-derived law post-Brexit | Significant proportion retained as 'retained EU law' |
| EU law in UK contracts before 1 January 2024 | Referenced as 'retained EU law' |
| EU law in UK contracts after 1 January 2024 | Preferable to use the term 'assimilated law' |
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What You'll Learn
Retained EU law
The UK's withdrawal from the European Union did not result in the removal of all EU-derived laws. A significant portion of EU law has been retained and incorporated into UK law as "retained EU law". This body of law is a snapshot of EU law as it applied in the UK on 31 December 2020, which was cut and pasted into the UK's domestic legal system. Sections 2 to 4 of the European Union (Withdrawal) Act 2018 establish three categories of retained EU law:
- Domestic law which implemented or related to former EU obligations, such as the UK's Working Time Regulations, which implemented the EU Working Time Directive.
- EU legislation that was directly applicable in the UK without implementing legislation, such as the EU's General Data Protection Regulation.
- Other rights and principles in EU law that had a direct effect in the UK, like the right not to be discriminated against on grounds of nationality, provided for in the Treaty on the Functioning of the EU.
This could amount to 150,000 pieces of EU legislation, though only a few thousand are thought to have a practical impact in the UK. The Northern Ireland Protocol of the Withdrawal Agreement states that certain aspects of EU law will continue to apply "to and in the United Kingdom in respect of Northern Ireland".
Since 2020, there have been amendments to retained EU law, with over 100,000 changes made by the UK and devolved governments. Some pieces of EU legislation have been revoked entirely, and new primary legislation has created new post-Brexit regimes in areas such as agriculture and subsidy control. From 1 January 2024, the first two categories of retained EU law have been renamed "assimilated law", while the third category, relating to EU law rights and principles, has been repealed in UK law. The special EU law features of former EU law no longer apply when a UK court or tribunal is applying assimilated law.
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Domestic legislation
The UK's exit from the European Union has not resulted in the removal of all EU-derived laws. Instead, a significant portion has been retained and incorporated into UK law as a novel form of domestic legislation known as 'retained EU legislation' or 'retained EU law'. This body of law consists of EU legislation that was applicable to the UK before 11:00 pm on 31 December 2020 and was retained under the European Union (Withdrawal) Act 2018.
Sections 2 to 4 of the EU Withdrawal Act (EUWA) establish three categories of retained EU law:
- Domestic law which implemented or related to former EU obligations, such as the UK's Working Time Regulations, based on the EU Working Time Directive.
- EU legislation directly applicable in the UK without requiring additional implementing legislation, such as the EU's General Data Protection Regulation.
- Other rights and principles in EU law that had direct effect in the UK, like the right to non-discrimination on grounds of nationality, as provided for in the Treaty on the Functioning of the EU.
Officially, this body of law could encompass up to 150,000 pieces of EU legislation, although only a few thousand are considered to have a practical impact in the UK. Since 2020, the UK has also enacted new primary legislation to establish post-Brexit regimes, replacing retained EU law in certain areas such as agriculture and subsidy control.
The first two categories of retained EU law were renamed 'assimilated law' as of 1 January 2024, while the third category, relating to EU law rights and principles, was repealed in UK law from the same date. The special features of EU law, such as the principle of EU law supremacy and directly effective EU rights, no longer apply when UK courts apply assimilated law.
The Northern Ireland Protocol, part of the Withdrawal Agreement, specifies that certain aspects of EU law continue to apply "to and in the United Kingdom in respect of Northern Ireland" to maintain the necessary conditions for cooperation between Northern Ireland and the Republic of Ireland and avoid a hard border. This complex area of law may require referring to multiple versions of legislation to understand the full picture.
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EU directives
The European Commission, referred to as the 'guardian of the treaties', ensures that all EU countries properly apply EU directives. The Commission will take steps if an EU country does not fully incorporate a directive into its national law by the set deadline. This may include an infringement procedure for 'non-communication' or incorrect transposition of directives.
In the UK, most EU directives were implemented by Statutory Instruments (SIs) under the authority of the European Communities Act 1972 (ECA). This Act authorised the implementation of EU law as national law in the UK, either directly or through primary or secondary legislation. The UK also used primary legislation (Acts of Parliament) to implement some EU directives.
An example of an EU directive being transposed into UK law is the 2010 Directive on Parental Leave. This directive was transposed into UK law through the Parental Leave (EU Directive) Regulations, which came into force on 8 March 2013.
After the UK's withdrawal from the EU, EU legislation that applied to the UK before 11:00 pm on 31 December 2020 was retained in UK law as 'retained EU legislation' or ''assimilated law'. This included EU directives, which continue to be recognised and available in domestic law.
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Northern Ireland Protocol
The Northern Ireland Protocol (NIP), or the Protocol on Ireland/Northern Ireland, is a protocol to the Brexit withdrawal agreement that outlines Northern Ireland's post-Brexit relationship with the EU and Great Britain. The NIP came into effect on 1 January 2021.
The NIP maintains the necessary conditions for continued cooperation between Northern Ireland and the Republic of Ireland and prevents a hard border. Under the NIP, Northern Ireland remains in the EU single market for goods, which allows for an open border between Northern Ireland and the Republic of Ireland. This unique arrangement is due to the "unique circumstances" of the island of Ireland.
The NIP sets out the circumstances in which EU legislation may continue to apply in Northern Ireland. The Court of Justice of the European Union (CJEU) has jurisdiction over the interpretation of applicable EU laws, and there is a role for the European Court of Justice regarding procedures in case of non-compliance. The NIP also allows for the possibility and requirement for UK courts to ask for preliminary rulings on the application of EU law and related parts of the protocol.
The Windsor Framework, adopted in March 2023, made changes to the NIP and established new mechanisms for the Northern Ireland Assembly. The Stormont Brake allows 30 MLAs from at least two parties in the NI Assembly to notify the UK Government of their wish to halt an EU law. Applicability motions apply when the EU adopts a new act that it considers to be within the scope of the Windsor Framework. Before the UK can agree with the EU in the Joint Committee that a new EU law should apply in NI, the Northern Ireland Assembly must indicate cross-community support for the new law.
Article 18 of the NIP allows members of the Northern Ireland Assembly to vote on the continued operation of the Protocol. The first consent vote is scheduled for December 2024. If members vote against continuing, there will be a two-year period for the UK and EU to agree on new arrangements. If the Assembly supports the continuance of the Protocol, the provisions will continue for four more years before another vote is held.
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Assimilated law
EU legislation that applied directly or indirectly to the UK before 11:00 pm on December 31, 2020, was retained in UK law as a novel form of domestic legislation known as 'retained EU legislation' or 'retained EU law' (REUL). This was established in the European Union (Withdrawal) Act 2018.
After 2023, 'retained EU law' became known as 'assimilated law', as per the Retained EU Law (Revocation and Reform) Act 2023. The first two categories of retained EU law—directly applicable EU legislation and domestic law related to former EU obligations—were reclassified as assimilated law from January 1, 2024. The third category, relating to EU law rights and principles, was repealed in UK law from the same date.
The UK government has expressed its intention to reform assimilated law to foster a pro-business environment, supporting innovation, investment, and high-quality jobs. This reform will also support the delivery of key strategies, including the UK's modern Industrial Strategy, the Trade Strategy, and the 10-Year Infrastructure Strategy.
The Retained EU Law (Revocation and Reform) Act 2023 was opposed by the Scottish Government, which argued that it undermined the devolution settlement and was enacted without the legislative consent of the Scottish Parliament.
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