Keith Mack
The UK has retained thousands of EU laws post-Brexit, with over 50,000 EU laws introduced in the UK since 1990. The extent to which the UK continues to implement EU laws depends on the nature of its negotiations with the EU. Some EU laws have been carried over into UK law to ensure continuity in areas such as agriculture and subsidy control, while others have been revoked or amended. The UK courts now apply domestic law principles of interpretation instead of EU law principles, which may lead to uncertainty and increased litigation as people seek clarity on the law. High-profile EU regulations that impacted UK laws include the EU Emissions Trading Scheme, the Working Time Directive, and the Capital Requirements Regulation.
| Characteristics | Values |
|---|---|
| Number of EU laws introduced in the UK since 1990 | 52,741 |
| High-profile EU regulations impacting UK laws | EU Emissions Trading Scheme, Working Time Directive, Temporary Agency Workers Directive, Capital Requirements Regulation and Directive |
| EU law application in the UK | Depends on the nature of UK-EU negotiations; businesses operating within the EU may need to follow both UK and EU laws |
| Retained EU law in the UK after Brexit | Yes; the 2018 European Union (Withdrawal) Act provided a framework for continuity, with amendments to ensure operability in a UK context |
| Primary legislation creating new post-Brexit regimes | Agriculture and subsidy control |
| Court procedures for cases involving EU-based case law | Lower courts can refer points of law to the Court of Appeal |
| UK-EU relations management | Centralised within the UK Cabinet Office, with a Minister for EU Relations appointed |
| Future of EU laws in the UK | Uncertain, but the UK will retain thousands of EU laws for at least two years as of 2024 |
| Types of EU legislation | Regulations, directives, opinions |
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What You'll Learn
The UK's relationship with the EU
In the lead-up to Brexit, there were approximately 52,741 laws introduced in the UK as a result of EU legislation since 1990. Even after Brexit, the UK retained thousands of EU laws, with over 100,000 amendments made to ensure operability in a domestic context. This "retained EU law" was facilitated by the 2018 European Union (Withdrawal) Act (EUWA), providing a constitutional framework for continuity. However, the 2023 Retained EU Law (Revocation and Reform) Act modified this framework, removing special features of EU law interpretation and application.
A significant aspect of the UK-EU relationship has been the management of trade agreements and the extent to which the UK continues to implement EU laws. The Trade and Cooperation Agreement (TCA), finalised in December 2020, governs the post-Brexit relationship and sets out detailed provisions across various sectors. The EU-UK Parliamentary Partnership Assembly (PPA), established under the TCA, serves as a forum for parliamentarians to discuss the implementation of the TCA and broader EU-UK relations.
Despite the UK's departure from the EU, the two entities continue to navigate a complex legal landscape, with businesses operating within the EU potentially needing to adhere to both UK and EU laws. The nature of their trade agreements and negotiations will determine the extent of EU influence over UK regulations.
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Trade agreements
The EU-UK Trade and Cooperation Agreement (TCA) is a treaty between the EU and the UK that governs their relationship after Brexit. The UK left the EU on 31 January 2020, and a transition period applied until 31 December 2020, during which the UK was still considered part of the EU for most matters. The TCA was negotiated and signed in December 2020 and entered into force on 1 May 2021.
The agreement covers trade in goods and limited mutual market access in services, with zero tariffs and zero quotas on goods complying with the appropriate rules of origin. It also includes provisions for cooperation in a range of policy areas, including energy, transport, and social security coordination.
On energy, the agreement provides a new model for trading and interconnectivity, with guarantees for open and fair competition, including safety standards for offshore and renewable energy production. It also reconfirms the Paris Agreement climate goals. However, the UK is no longer part of the EU energy market and emissions trading scheme.
In terms of transport, the agreement covers air and road transport, with provisions to ensure competition between EU and UK operators takes place on a level playing field, protecting passenger rights, workers' rights, and transport safety.
The agreement also includes provisions for social security coordination, aiming to ensure the rights of EU citizens in the UK and UK nationals in the EU after 1 January 2021. It enables the UK's continued participation in some EU programmes for the period 2021-2027, subject to a financial contribution by the UK.
The TCA also establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters, recognising the need for strong cooperation between authorities in fighting and prosecuting cross-border crime and terrorism.
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Retained EU laws
The UK formally left the EU on 31 January 2020, with the Withdrawal Agreement negotiated between the two parties covering citizens' rights, separation issues, the transition period, the financial settlement, and the overall governance structure of the Withdrawal Agreement, among other areas. Since then, the UK has retained thousands of EU laws, with the government announcing in January 2024 that many of these would be retained for at least the next two years.
The extent of the continued application of EU law in the UK depends on the nature of the UK's negotiations with the EU regarding its departure from the bloc. The UK-EU Brexit deals are directly enforceable in the UK legal system, and the 2018 European Union (Withdrawal) Act (EUWA) provided a new constitutional framework for the continuity of 'retained EU law' in the UK from 31 December 2020. Over a thousand pieces of domestic secondary legislation were created, making over 100,000 amendments to retained EU law. While many of these amendments were technical, some were substantive, and some pieces of EU legislation were revoked entirely.
The 2023 Retained EU Law (Revocation and Reform) Act has modified this framework from 1 January 2024, removing the special features of EU law that applied to the interpretation and application of this legislation. UK courts now need to apply traditional domestic law principles of interpretation instead of EU law principles, which may lead to courts reaching different conclusions than they did before Brexit.
Some examples of high-profile EU regulations that impacted UK laws include the EU Climate and Energy "20-20-20" Package, the Working Time Directive, and the Temporary Agency Workers Directive.
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UK courts and EU law principles
The UK left the EU in 2020, and since then, the UK government has been in a transition period where it has been gradually removing EU laws from the British statute book. The UK courts have also been transitioning from applying EU law principles to traditional domestic law principles of interpretation.
The Court of Justice of the EU (CJEU) interprets EU law and ensures its uniform application across all member states. Although the UK has left the EU, the CJEU retains jurisdiction over some matters affecting the UK during and after the transition period. For instance, if the EU Commission believes that the UK has failed to comply with any EU law obligations, it can bring a case before the CJEU against the UK, as stated in Article 158 of the WA.
The UK courts were previously bound by EU law principles when considering retained EU law, but this changed with the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). The REUL Act removed the concept of direct effect, the principle of EU law supremacy, and general principles of EU law such as proportionality. As a result, UK courts are no longer able to apply general principles of EU law and must instead apply UK principles of interpretation.
The 2023 Act has also created new court procedures for cases raising issues of EU-based case law. For example, lower courts can refer points of law to the Court of Appeal for a ruling on whether to follow previous case law. This change is expected to lead to some uncertainty in the first few years of assimilated law, which typically results in more litigation as people seek clarity in the law.
While the UK has retained some EU laws and principles, the two legal systems will inevitably diverge over time as they evolve independently of one another. This means that UK courts will increasingly interpret and apply the law differently from how they did when the UK was a member of the EU.
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EU regulations and directives
EU directives lay out certain results that must be achieved by member states, but each member state is free to decide how to transpose directives into national laws. Directives give member states a timetable for the implementation of the intended outcome. Directives are particularly important for environmental and health & safety management. For example, the UK passed a statutory instrument, the Unfair Terms in Consumer Contracts Regulations 1994, to implement the EU Unfair Terms in Consumer Contracts Directive 1993. Directives are also important for product safety, such as Directive 2006/42/EC on machinery.
EU regulations, on the other hand, apply across the board, directly, with no need for member states to engage in lawmaking beyond assigning responsible national authorities. Regulations are used when it comes to environmental issues that have cross-border and market implications, such as Chemicals and Waste management, and which therefore require a harmonized approach. Two prominent EU Regulations are the “REACH” and “CLP” Regulations, which regulate different aspects of chemicals.
Since 1990, a total of 52,741 laws have been introduced in the UK as a result of EU legislation. Some EU laws have been carried over into UK law after Brexit to ensure continuity in the many areas of UK law originally based on EU law. However, the UK has also made over 100,000 amendments to retained EU law, and new primary legislation has created new post-Brexit regimes that replace retained EU law in some areas. The extent of the continued application of EU law in the UK depends on the nature of the UK’s negotiations with the EU over its departure from the bloc.
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Frequently asked questions
The UK formally left the EU on 31 January 2020. The UK and EU negotiated a Withdrawal Agreement that covered citizens' rights, separation issues, the transition period, the financial settlement, and the overall governance structure of the Withdrawal Agreement. The UK continued to participate in the EU's single market and customs union until the end of the transition period on 31 December 2020. In December 2020, the EU and the UK finalised the Trade and Cooperation Agreement (TCA) which came into force in May 2021 and governs the post-Brexit relationship.
According to the Legal business of Thomson Reuters, a total of 52,741 laws were introduced in the UK as a result of EU legislation since 1990.
Some high-profile EU regulations that impacted UK laws before Brexit include:
- The EU Climate and Energy "20-20-20" Package, which included laws to cut greenhouse gas emissions and increase renewable energy sources.
- The Working Time Directive, which gave workers the right to a minimum holiday entitlement and limited the working week to 48 hours.
- The Temporary Agency Workers Directive, which sought to give equal rights to agency employees and permanent employees doing the same job.
The future relationship between the UK and the EU, including the extent of EU law in the UK, will depend on ongoing negotiations and trade agreements. Some EU laws have been carried over into UK law to ensure continuity in areas originally based on EU law. However, the UK has also made amendments and revoked certain pieces of EU legislation. Over time, UK law is expected to diverge from EU law as they evolve independently.
