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Retained EU law

Retained EU law is the new constitutional framework for former EU law to continue to apply in the UK legal system after the UK leaves the EU.  

If the UK leaves the EU without a deal (under a ‘no deal scenario’), then this framework of retained EU law will apply with immediate effect.

If the UK leaves the EU with a deal, the withdrawal agreement that was concluded in November 2018 provides for a transition period during which the large majority of EU law would continue to apply.  This would be the case up until the end of 2020, unless the transition period is extended.  From the end of the transition period, where EU law ceases to apply, the framework of retained EU law would then apply (see below “EU law at the end of the transition period”).

the UK Government Legal Department  has produced videos on retained EU law.  Transcripts of these videos are also available.

Brexit: an introduction to retained EU law gives an overview of what retained EU law is and the part it will play in the UK's legislative framework post-Brexit.  This is arranged under the following headings:

  • What is retained EU law?
  • Categories of retained EU law.
  • Implications for EU case law.
  • Supremacy of retained EU law.
  • EU law's ongoing significance.

Brexit: how retained EU law works looks at the ways in which retained EU law differs from the EU law that has applied to the UK legal system historically, pre-Brexit. This is arranged under the following headings:

  • How retained EU law differs from pre-Brexit EU law.
  • Implications for EU case law.
  • Enforcement of retained EU law.
  • EU Charter of Fundamental Rights.
  • Limitations on the direct effect of directives.

Retained EU law is explained in the following terms:

"Retained EU law is the new constitutional framework for former EU law to continue to apply in the UK legal system after the UK leaves the EU.  It is established by the EU (Withdrawal) Act 2018.  What that Act does is take a snapshot of EU law as it applies in the UK at the point that we leave. That snapshot is then cut and pasted into our national legal system so that it continues to apply. What the EU (Withdrawal) Act is trying to do here is to provide some continuity and to avoid a situation where that body of EU law which has applied for many years in our national legal system does not just vanish, leaving a hole overnight. Over time that body of retained EU law may be gradually amended and replaced by domestic legislation that is passed in the usual way.”

Three categories of retained EU law are described as follows:

“Retained EU law consists of almost all EU law as it applies in the UK at the point of exit. The EU (Withdrawal) Act breaks that down into three categories in sections 2, 3 and 4. The first is domestic legislation which implements EU law. For example, that would be something like the UK Working Time Regulations, which implement the EU Working Time Directive. The second is EU legislation which is directly applicable in the UK. An example of that would be something like the EU General Data Protection Regulation. The third category is directly effective EU rights and an example of that would be the right to equal pay for men and women, which is set out in Article 157 of the Treaty on the Functioning of the European Union (TFEU).”

Section 1

Power to correct 'deficiencies' in retained EU Law

Some of the Act’s provisions have already been brought into force, including the powers of the Secretary of State and of the Welsh Ministers to correct ‘deficiencies’ in retained EU law.

These powers are only available for up to two years after exit day.

Section 8(1) gives a Minister of the Crown a power to make secondary legislation to deal with deficiencies that would arise on exit in retained EU law. This includes the law which is preserved and converted by sections 2, 3 and 4 (i.e. both domestic law and directly applicable EU law). These problems, or deficiencies, must arise from the UK’s withdrawal from the EU (which includes the consequence that the UK will cease to participate in the EEA Agreement).

Section 8(2) explains the sorts of deficiencies that the power can deal with. These include: 

  • provisions that have no practical application after the UK has left the EU; 
  • provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency; 
  • provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate; 
  • any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate; 
  • EU references that are no longer appropriate.

Corresponding powers are conferred on the devolved authorities (including the Welsh Ministers) by Part 1 of Schedule 2, although there are certain restrictions on the exercise of these powers.  In particular, there is no power to make provision outside devolved competence.  Paragraph 9 of Schedule 2 sets out the circumstances in which a provision is within the devolved competence of the Welsh Ministers for the purposes of Part 1 of Schedule 2.

Section 2

Possible uses of the power to correct deficiencies arising from withdrawal

The Explanatory Notes to the EUWA 2018 give examples of possible uses of these powers:

Throughout the statute book, there are references which will no longer be accurate once the UK leaves the EU, such as references to "member states other than the United Kingdom", to "EU law", or to providing for the UK’s "EU obligations". Such references will need to be repealed or amended to ensure the UK has a functioning statute book post-exit. 

For example, the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to "other EEA States" in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to "other EEA States" to "EEA States", would allow the requirement on transboundary consultation to continue to function on exit as it does now, reflecting the fact that the UK will have left the EEA. This would enable an important piece of environmental protection law to continue to operate effectively. 

In addition to this, there will be law which will, upon leaving the EU, no longer works properly and which will need to be corrected to continue to work; for example, where law requires the UK to obtain an opinion from the European Commission on a given issue. Upon exit, the Commission will no longer provide such opinions to the UK. Such requirements in existing law would prevent certain projects from taking place unless corrective action was taken. In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body or remove this requirement completely. 

There are many important functions carried out at EU level, such as the evaluation and authorisation of chemicals, air safety regulation and genetically modified food and feed regulation. Depending on what is agreed with the EU, many functions may need to be transferred to appropriate bodies in the UK for them to continue and the power to deal with deficiencies would enable this. 

Once the UK leaves the EU, there will also be areas of law where policy no longer operates as intended. One element of EU law is the reciprocal arrangements between states including reciprocal rights of citizens. As a matter of international law, those obligations will fall away at the point where the UK leaves the EU. At the same point, EU states’ obligations under EU law to the UK and its citizens will also fall away. Any such obligations beyond that time will only exist if they are covered in the withdrawal agreement. However, without a correction, the UK’s law would still include recognition of EU citizens’ rights. The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals.

A large quantity of secondary legislation has been made by the UK Government and the Welsh Ministers under these ‘deficiencies’ powers.   In general, the Welsh Ministers have exercised their powers to make corrections to Wales made legislation (Assembly Acts and Measures and Welsh made statutory instruments).  In accordance with paragraph 8 of the Memorandum to the Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks (the IGA), Welsh Ministers have consented to the UK Government making corrections to UK Acts of Parliament and UK SIs in devolved areas.   

Paragraph 8 of the Memorandum provides: “The UK Government will be able to use powers under clauses 7, 8 and 9 [now sections 8 and 9 of the Act] to amend domestic legislation in devolved areas but, as part of this agreement, reiterates the commitment it has previously given that it will not normally do so without the agreement of the devolved administrations.”

In accordance with paragraph 9 of the Memorandum to the IGA, Welsh Ministers have also consented to the UK Government making corrections to retained directly applicable EU law (the second and third categories of retained EU law, as described above).

Paragraph 9 of the Memorandum provides:

“The UK Government will bring forward amendments to Schedule 2 to the Withdrawal Bill to enable the devolved administrations to amend retained directly applicable EU law which relates to areas that are otherwise devolved except where clause 11 regulations [now section 12 regulations] have been made. While the UK Government will also be able to use the powers in clause 7, 8 and 9 [now sections 8 and 9] to amend this retained directly applicable EU law, as part of this agreement it commits it will not normally do so without the agreement of the devolved administrations. Where the UK Government is proposing to amend retained directly applicable EU law which relates to areas that are otherwise devolved, but which cannot be amended by the devolved administrations because clause 11 regulations [now section 12 regulations] have been made, the UK Government commits that it will first consult the relevant devolved administration(s).”

An example of a UK Government EU Exit SI made under section 8 of the EU (Withdrawal) Act which makes amendments to UK Statutory Instruments and retained direct EU legislation in a devolved area is the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2019.   This instrument is made in order to address deficiencies in retained EU law relating to restrictions on the use of ozone depleting substances and fluorinated greenhouse gases to ensure the legislation continues to operate effectively at the point at which the United Kingdom leaves the European Union, if there is no withdrawal agreement.  The instrument transfers powers and functions from the European Institutions (including the European Commission and European Environment Agency) to the Secretary of State, devolved Ministers and appropriate UK regulatory bodies (including Natural Resources Body for Wales, as the appropriate regulator in relation to Wales), so that the requirements of the EU ODS and F-gas Regulations can continue to operate in the UK after EU Exit, if there is no withdrawal agreement.

An example of a Wales EU Exit SI made by the Welsh Ministers under Part 1 of Schedule 2 to the EU (Withdrawal) Act is the Nutrition (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019.  This instrument amends seven Welsh made SIs relating to nutrition, composition and labelling.  The minor and technical changes made by the instrument are necessary to ensure that this Welsh made EU-derived domestic legislation enforcing retained direct EU legislation continues to operate effectively. The changes made to ensure that it operates effectively include the removal of references to “member state”, EU law/obligations and definitions of “EEA Agreement”, “EEA State” and “free circulation in member States”. It will also fix references to EU Directives where necessary and replaces references to EU bodies with the names of competent UK authorities.

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