Brexit FAQs: EU Law and Institutions

EU legislation is divided into primary, secondary and tertiary.

The treaties (primary legislation) are the basis or ground rules for all EU action.

Secondary legislation, which includes regulations, directives and decisions, is derived from the principles and objectives set out in the treaties. Regulations and decisions become binding automatically throughout the EU on the date they come into force. Directives must be incorporated by EU countries into their national legislation.

Tertiary legislation consists of delegated and implementing acts. This is legislation which supplements, amends or implements the rules set out in directives, regulations and decisions.

UK Ministers and Scottish Ministers had domestic powers to make regulations (secondary legislation) to implement EU law. Domestic regulations implementing EU law cover various issues, for example, workers’ rights and the labelling of food.

Now the transition period has ended, the UK is able to change the policy provided for in both EU secondary and tertiary legislation and in domestic regulations implementing EU law.

Section 53 of the Scotland Act 1998 gave Scottish Ministers powers to make regulations (secondary legislation) in devolved areas (those which are not reserved to the UK Parliament under the Scotland Act) for the purpose of giving effect to EU law.

Section 57(1) of the Scotland Act 1998 gave UK Ministers powers to make regulations for the purpose of giving effect to EU law in devolved areas.

These powers in relation to giving effect to EU law under the European Communities Act 1972 were removed at the end of the transition period on 31 December 2020.

On 22 December 2020, the Scottish Parliament passed the UK Withdrawal from the European Union (Continuity) (Scotland) Bill (2020).  The Bill provides for the introduction of a power to enable Scottish Ministers to continue to keep Scots law aligned with EU law in devolved areas, on a case by case basis.

Some areas of law have always been determined at a UK level. For areas of law which were previously derived from the EU, the UK had to be compliant with EU law until the end of the transition period (31 December 2020).

From 1 January 2021 the UK had no obligation to conform to EU law.

After the end of the transition period, policy for areas which were previously covered by EU law are now decided at UK level by the UK Government and at a Scottish level by the Scottish Government.

Scottish Ministers continue to have powers in devolved areas and the Scottish Parliament will continue to be the primary legislature (the law-making body) for Scotland. The UK Parliament has always had the power to make laws for Scotland in devolved areas and it will continue to have that power. The UK Parliament will not normally legislate in devolved areas without seeking the consent of the Scottish Parliament.

Some UK legislation, like the European Union (Withdrawal Agreement) Act 2020 does, however, give UK Ministers the power to make regulations (secondary legislation) in devolved areas. The effect of these regulations may be to change policy. UK Ministers will not normally make such regulations in devolved areas without the consent of the Scottish Ministers. That agreement is a legal requirement in some cases, but not in all.

The European Union (Withdrawal) Act 2018 gives Scottish Ministers powers to amend the law in devolved areas by regulations (secondary legislation) so that Scottish laws work effectively after the UK leaves the EU and the transition period is complete.

UK Ministers have powers under the European Union (Withdrawal) Act 2018 to adjust the laws in the UK, including Scottish laws, so that they work effectively after the UK leaves the EU. UK Ministers will not normally make such regulations in devolved areas without the consent of the Scottish Ministers. That agreement is a legal requirement in some cases, but not all.

The European Union (Withdrawal Agreement) Act 2020 gives UK and Scottish Ministers a suite of new powers in devolved areas that go beyond correcting deficiencies. These powers have been conferred concurrently, meaning that either UK Ministers or Scottish Ministers can act. The suite of concurrent powers includes:

• powers to implement long term obligations for the recognition of citizens' rights under the Withdrawal Agreement
• powers to deal with separation issues such as the regulation of goods placed on the market
• powers to implement the Ireland/Northern Ireland protocol.

There are other powers created or amended in the deficiencies correcting instruments and also powers in other Brexit related legislation, such as the UK Direct Payments to Farmers (Legislative Continuity) Act 2020, the UK Agriculture Act 2020 and the UK Fisheries Act 2020.

In response to the UK leaving the EU single market the UK Government’s Internal Market Act 2020, aims to “preserve the UK internal market”.  The Act establishes two market access principles to protect the flow of goods and services in the UK’s internal market:

• the principle of mutual recognition.
• the principle of non-discrimination.

For the sale of goods, the market access principles would in effect mean that if a good meets the required legal standards to be placed on the market in any one of the four nations of the United Kingdom, it can be placed on the market in all four nations.  In addition, the non-discrimination principle means that the sale of goods in one part of the United Kingdom should not be affected by restrictions that discriminate against goods that have been produced in another part of the United Kingdom.

In terms of services, the Act provides that where a service provider is authorised to provide a service in any of the four nations of the UK, they may provide the same service in all four nations of the UK.

During Parliament’s consideration of the Internal Market Bill, the Scottish Government ‘s Legislative Consent Memorandum (LCM) said that the bill was fundamentally incompatible” with the “principles and practice” of the devolution settlement in Scotland. By compelling primary or secondary Scottish legislation to conform to the principles of the Bill, the LCM argued that it introduced “a new, wide-ranging constraint on devolved competence.”  The parliament discussed the LCM on 7 October, and agreed not to consent to the bill.

Although the Internal Market Bill did not receive legislative consent from the Scottish or Welsh Parliaments, the UK Parliament chose to enact the legislation.

Many of the laws in the UK come from having been part of the EU. These laws cover issues from workers’ rights to the labelling of food.

The UK left the EU on 31 January 2020, and EU law continued to apply during the transition period.

At the end of the transition period a snapshot of EU law was taken that will become 'retained EU law'.

This adoption of EU law as retained EU law was intended to make sure that the UK had the laws it needed after the end of the transition period. This could include, for example, the law on the nutrition and health claims made on food or on ensuring environmental protection in marine areas.

The creation of a new category of UK law called 'retained EU law' was one of the jobs of the European Union (Withdrawal) Act 2018

The UK is able to amend the policy underlying retained EU law now that the transition period has ended.

If EU law as it was written was simply copied and pasted into UK law it wouldn’t make sense. The result would be gaps, errors and ultimately unintended consequences. Together these gaps, errors and unintended consequences are known as ‘deficiencies’.

A great deal of work was done to make sure that UK laws work properly now that the transition period has ended. In some cases, the changes were very small – removing references to EU institutions, for example. In other cases, they were more significant - such as changes in regulatory requirements.

This work is ongoing as some of the lower priority deficiencies still remain to be fixed.

Because so many laws needed to be changed in a relatively short period of time, UK Government Ministers and Scottish Government Ministers have been given special temporary powers which allow them to change the law to correct ‘deficiencies’ (gaps, errors, unintended consequences).

These special powers which Ministers have come from the European Union (Withdrawal) Act 2018.

UK and Scottish Ministers change the law through secondary legislation. Secondary legislation made by UK Ministers are known as statutory instruments (SIs). Secondary legislation made by Scottish Ministers are Scottish statutory instruments (SSIs).

In some cases where the UK Government and the Scottish Government wish to pursue the same policy objective, the Scottish Government can ask the UK Government to lay statutory instruments that include proposals relating to devolved areas of responsibility. UK Ministers will not normally make such regulations in devolved areas without the consent of the Scottish Ministers. That agreement is a legal requirement in some cases, but not in all.

The changes made by these kinds of regulations are often technical and are there to achieve legal continuity. These powers are time limited.

Secondary legislation (also known as subordinate legislation and regulations) are, broadly speaking, called Statutory Instruments if they are made by UK Ministers and laid before the UK Parliament and Scottish Statutory Instruments if they are made by Scottish Ministers and laid before the Scottish Parliament.

At both the UK Parliament and the Scottish Parliament there are two main procedures for secondary legislation. The procedures are affirmative and negative.

Secondary legislation which is subject to the affirmative procedure is laid before the relevant Parliament in draft and requires the approval of Parliament to become law.

Secondary legislation which is subject to the negative procedure is made (signed by a Minister) before being laid in parliament. There is a period of 40 sitting days during which the relevant parliament can object to an SI (UK Parliament) or move to annul an SSI (Scottish Parliament) which has been made. During the 40-day period, the Parliament can vote on a motion to annul, which either stops the SI or SSI from being law or from becoming law.

The Scottish Parliament cannot scrutinise secondary legislation laid at the UK Parliament. It can, however, scrutinise the decision of Scottish Ministers to consent to the regulations being made by UK Ministers in devolved areas.

The process for this is the statutory instrument protocol agreed between the Scottish Government and the Scottish Parliament.

Yes. The European Convention on Human Rights is an international treaty. It sets out rights and guarantees for people. Any state which has signed up to ECHR commits to respect the rights and guarantees which it contains.

Members states of the Council of Europe have signed the ECHR. The UK is one of those countries. In the UK, rights under the ECHR are protected by the Human Rights Act 1998.

The European Court of Human Rights (ECtHR) hears cases related to the ECHR. Now that the UK has left the EU, the relationship to the ECtHR has not changed.

The Charter of Fundamental Rights of the European Union sets out the fundamental rights of everyone living in the EU.

Now that the transition period has ended, the UK is no longer bound by the Charter. However, any rights found in the Charter that become EU retained law because of their existence elsewhere can still be relied upon.

The Court of Justice of the European Union ensures that EU countries and institutions abide by EU law. It does this by making sure that EU law is interpreted and applied consistently in every EU country.

The Court of Justice of the European Union is made up of the Court of Justice and the General Court.

Whilst the Court does not have a direct role in the UK on a day-to-day basis now that the transition period has ended, the Withdrawal Agreement does specify that UK courts can refer questions about the EU law referred to in the Citizens’ rights part of the agreement to the Court of Justice of the European Union for eight years following the end of transition.

The Council of Europe brings together governments from across Europe and beyond. It is an entirely separate organisation to the European Union.

The Council agrees minimum legal standards in many areas, particularly in relation to human rights; democracy and the rule of law. The Council monitors how well countries apply the standards that they have agreed.

The Council of Europe includes 47 member states. The UK is still a member now it has left the EU.