Cameron Miranda
The UK's exit from the EU, or Brexit, has had a significant impact on the relationship between EU directives and UK law. Before Brexit, EU directives were implemented into UK law through various mechanisms, including statutory instruments (SIs) under the European Communities Act 1972 (ECA) and primary legislation (Acts of Parliament). With Brexit, the UK government faced the challenge of deciding the fate of thousands of EU laws that had been incorporated into UK legislation. The proposed solution was the Great Repeal Bill, aimed at converting EU laws into UK laws, allowing the UK government and Parliament to decide on their retention, amendment, or repeal. This process involved addressing directly applicable EU laws and regulations, as well as EU-derived UK legislation, to ensure continuity and consistency in the legal system.
| Characteristics | Values |
|---|---|
| Number of EU legislative acts in force | 19,000 |
| Types of EU legislative acts | Directives, regulations, decisions, external agreements, resolutions, reports, rules of procedure, guidelines, declarations, inter-institutional and internal agreements, programmes, opinions, communications, conclusions, statutes |
| Number of Directives in force | 900 |
| Number of EU regulations | 5,000 |
| UK laws implementing EU law | Statutory Instruments (SIs) |
| EU directives implemented by statute | Enshrined in UK law |
| EU directives implemented by primary legislation | Act of Parliament |
| UK legislation that implemented or related to former EU obligations | The UK's Working Time Regulations |
| EU legislation directly applicable in the UK without implementing legislation | The EU's General Data Protection Regulation |
| Number of legislative instruments identified by the UK government since 2022 | 4,000+ |
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What You'll Learn
The Great Repeal Bill
The House of Commons Library estimated that 13.2% of UK primary and secondary legislation enacted between 1993 and 2004 was EU-related. The Great Repeal Bill was thus expected to be one of the largest legislative projects ever undertaken in the UK, requiring between 800 and 1000 statutory instruments.
The aim of the bill was to 'convert' the EU acquis into UK law so that the government and parliament could then decide what to do with them as UK measures. Most SIs implementing EU directives would continue in force on Brexit day. EU directives that were implemented by statute would already be enshrined in UK law, but the relevant Acts of Parliament might need to be amended if they provided explicitly that they were based on EU law.
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Statutory Instruments
The European Union (Withdrawal) Act 2018 gives ministers the power to create statutory instruments (SIs) to address legal issues arising from Brexit. SIs are a form of secondary legislation that can be used to implement EU directives in the UK.
The majority of EU directives are implemented in the UK by SIs under the authority of the European Communities Act 1972 (ECA) or another enabling Act. The ECA provides the power for subordinate legislation to be made where the EU Treaties require member states to make provisions in their domestic law, such as for the implementation of directives.
The UK government's proposed "Great Repeal Bill" aims to "convert" EU law into UK law to avoid legal gaps, after which the government and parliament will decide whether to repeal, amend or keep them. As such, most SIs implementing EU directives will continue in force on Brexit day.
However, repealing the ECA would render secondary legislation made under it no longer legally valid on Brexit day. This would include EU regulations, which will cease to have effect in the UK if the ECA is repealed without a saving provision.
Ministers can choose to use either the affirmative or negative procedure when creating SIs. The affirmative procedure requires a debate and approval from both Houses, while the negative procedure does not guarantee a debate. If the negative procedure is chosen, the minister must lay before both Houses a proposed negative SI, including a draft of the SI and a memorandum explaining their choice of procedure. Committees in each House then have 10 sitting days to consider the proposal and recommend whether the affirmative or negative procedure should be used.
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EU Regulations
The UK government addressed this issue through the European Union (Withdrawal) Act 2018, which brought the text of relevant EU regulations onto the UK statute book. These regulations were then amended to ensure they were fit for life outside the EU. This was done in a similar manner to the implementation of EU directives, which were also "converted" into UK law through the proposed Great Repeal Bill. This bill aimed to address the thousands of EU laws that were directly applicable in the UK, allowing the government and parliament to decide whether to repeal, amend, or keep them.
The Great Repeal Bill, or the UK's withdrawal from the EU, did not affect the devolved authorities' ability to observe, transpose, and implement EU law. Following Brexit, these authorities, including Gibraltar and the Crown Dependencies, had to address the matter of EU-derived laws within their jurisdictions. The UK's withdrawal from the EU also resulted in the loss of the principle of EU law supremacy, with national legislation no longer able to be disapplied due to inconsistency with EU law.
The 2018 European Union (Withdrawal) Act provided a framework for the continuity of 'retained EU law' in the UK, which was later modified by the 2023 Retained EU Law (Revocation and Reform) Act. This act removed the special features of EU law regarding interpretation and application, renaming it 'assimilated law'. While not falling under the definitions of retained or assimilated law, many aspects of the UK-EU Brexit deals are directly enforceable in the UK legal system. This includes the UK-EU Withdrawal Agreement and the Windsor Framework, which have direct effect in the UK legal system where required.
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Devolved administrations
The European Communities Act 1972 (ECA) applies to the whole of the UK and to varying degrees in Gibraltar and the Crown Dependencies. Under the Devolution Statutes, the devolved authorities may observe, transpose, and implement EU law, and they are obliged not to legislate or act in a way that is contrary to EU law. Brexit means they too will need to address the matter of EU-derived laws.
The UK and devolved governments have agreed that in some areas, new UK-wide 'common frameworks' will be needed to ensure consistency or coordination across certain policies. In 2018, over 30 'deep dive' workshops were held, each bringing together civil servants from different administrations to discuss common frameworks for a specific policy area. The EU Withdrawal Act requires the UK government to publish quarterly progress reports on common framework development.
In its updated frameworks analysis, published in September 2020, the UK government, following close consultation with the devolved administrations, categorised the 154 policy areas where EU and devolved powers intersect into three groups. The first group, "No further action areas", includes 115 areas where the four governments will continue to cooperate, but no framework is needed. The second group includes non-legislative areas where coordination is required but a binding legal framework is unnecessary.
When the transition period ends, policy areas will return to devolved control. This could lead to policy differentiation within the UK in areas where EU law previously provided a common legal framework. To prevent or limit divergence, common frameworks may be created to "set out a common UK, or GB, approach and how it will be operated and governed".
Some EU law has been carried over into UK law after Brexit to ensure continuity in the many areas of UK law originally based on EU law. The 2018 European Union (Withdrawal) Act (EUWA) provided a new constitutional framework for the continuity of this 'retained EU law' in the UK from 31 December 2020. 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, and renaming it 'assimilated law'. The government remains committed to reforming assimilated law, where desirable, to foster a pro-business environment through a streamlined regulatory framework.
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EU-derived laws
The UK government has addressed the issue of EU-derived laws post-Brexit in several ways. Firstly, the European Union (Withdrawal) Act 2018 provided a constitutional framework for the continuity of 'retained EU law' in the UK, replacing the EU treaties that previously applied. This act ensured that EU-derived UK legislation would continue to have the same meaning and effect as it did before Brexit.
Secondly, the proposed Great Repeal Bill aims to 'convert' the EU acquis (the body of existing EU law and obligations) into UK law, allowing the UK government and parliament to decide what to do with them as UK measures. This bill will 'convert' EU law into UK law where practical, and directly applicable laws will be 'saved' until decisions can be made about their future.
Thirdly, the UK and devolved governments made over 1,000 pieces of domestic secondary legislation, making around 100,000 amendments to retained EU law. Most of these amendments were technical to ensure the retained laws would function in a UK context, but some substantive changes were also made, and some EU legislation was revoked entirely. Since Brexit, new primary legislation has been created to establish post-Brexit regimes in areas like agriculture and subsidy control.
Finally, while not falling under the definitions of retained or assimilated law, many aspects of the UK-EU Brexit deals are directly enforceable in the UK legal system, as provided for in Section 7A of EUWA and Section 29 of the 2020 European Union (Future Relationship) Act.
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Frequently asked questions
Retained EU law is a "snapshot" of all EU law that was applicable in the UK at the end of the Brexit transition period, i.e. 11 pm on 31 December 2020. 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.
The Great Repeal Bill is a proposed bill that aims to "convert" the EU acquis into UK law. This means that most SIs implementing EU directives will continue to be in force post-Brexit. The UK government and parliament can then decide whether to repeal, amend or keep them.
The European Union (Withdrawal) Act 2018 provided a new constitutional framework for the continuity of retained EU law in the UK from 31 December 2020. It replaced the EU treaties that had applied in the UK until that point.
