This is a joint guest blog with Professor Tobias Lock. Professor Lock is Jean Monnet Chair in EU Law at Maynooth University and is also an adviser to the Constitution, Europe, External Affairs and Culture Committee.
Retained EU law will play an important role in Scots law in the future. It is likely that over time it will be replaced by new laws made in the UK Parliament and/or the devolved legislatures. This means that there will be less retained EU law in the future, but without a concerted effort, this process will likely take a long time.
This blog provides an overview of what retained EU law is; explores some of the recent political developments around it, including the UK Government’s commitment to introduce a ‘Brexit Freedoms Bill’, and discusses the possible implications of those developments for Scotland.
The Constitution, Europe, External Affairs and Culture Committee held a roundtable on retained EU law on 30 June 2022.
What is retained EU law?
In essence, retained EU law is a copy of the EU law that used to apply when the UK was a member of the EU. These laws and rights were brought into domestic law as a new body of law called “Retained EU law”.
Retained EU law can therefore be seen as a snapshot of many of the EU laws and rights (the whole of EU law was not included, there were some exceptions which were not copied across) that applied in the UK at the end of the implementation period (11pm on 31 December 2020 – the point at which EU law ceased to apply in the UK). This point in time is known as Implementation Period Completion Day, or “IP Completion Day”.
Retained EU law exists in areas previously governed by EU law. As such, retained EU law exists in both reserved areas such as labour law, consumer protection law or equality law and devolved areas, notably environmental law and animal welfare law.
Retained EU law is an umbrella term comprising three different sub-categories:
- Domestic law which implemented or related to EU obligations. This is called “EU-derived domestic legislation”. This was saved by section 2 of the European Union Withdrawal Act 2018 (EUWA). The most important instance of EU-derived domestic legislation are implemented EU Directives. Examples include the Working Time Regulations 1998 (a UK SI) which implemented the EU Working Time Directive in England, Scotland and Wales and the Air Quality Standards (Scotland) Regulations 2010 (a SSI) which implemented the EU Air Quality Directive in Scotland.
- EU legislation which was directly applicable in the UK, most importantly EU Regulations, which used to apply in the UK in and of themselves. This is now called “direct EU legislation”. It was converted into domestic law by section 3 of EUWA. Examples are the EU’s General Data Protection Regulation (known as the UK GDPR in retained EU law) or Regulation 261/2004 (the Flight Compensation Regulation).
- Other rights, powers, obligations, remedies etc. in EU law that had direct effect in the UK. These are known as “saved EU rights” – a catch-all category for EU rights and obligations which are not captured in “direct EU legislation”. These were saved by section 4 of EUWA. Examples include directly effective rights contained in EU treaties such as the right to equal pay.
Any EU law that came into force after 11pm on 31 December 2020 is not retained EU law.
Why was retained EU law created?
While the UK was in the EU, EU law applied in the UK because of the European Communities Act 1972 (ECA).
Section 1 of the European Union (Withdrawal) Act 2018 (EUWA) repealed the ECA on IP Completion Day. If the ECA had been repealed without any other provision having been made, then from the moment of repeal:
- EU law would have ceased to apply in the UK
- all existing domestic secondary legislation made under the ECA 1972, which implemented EU law, would have ceased to have effect.
This would have meant that there would have been no law in place in the UK in the policy areas that were formerly governed by EU law. This would have resulted in very significant gaps in the statue book across a range of policy areas including food standards, environmental protection, animal welfare and climate change.
The principle of supremacy
A key principle of EU law is that EU law is supreme, which means that it takes precedence over conflicting domestic law within the EU’s member states. Domestic laws in EU member states must therefore be disapplied by domestic courts if found to be inconsistent with EU law.
The European Union (Withdrawal) Act 2018 ended the supremacy of EU law in the UK after IP Completion Day.
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after IP Completion Day.”
[Section 5(1) EUWA]
For law made before IP Completion Day, the principle of supremacy is preserved. This means that laws made in the UK before 11pm on 31 December 2020 should still be read subject to EU law as it stood on exit day and disapplied to the extent that they are inconsistent.
“the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before IP Completion Day”.
[Section 5(2) EUWA]
Scottish Parliament Legislative Competence
Until IP Completion Day (11pm on 31 December 2020), any legislation passed by the Scottish Parliament had to comply with EU law: it was outwith the Scottish Parliament’s legislative competence to legislate incompatibly with EU law. When EU law ceased to apply in the UK, this requirement was removed.
At the same time, this was replaced by a restriction on the Scottish Parliament’s competence to prevent it from changing the law in any policy area that had been “frozen” by regulations made by the UK Government. This was set out in section 30A of the Scotland Act 1998 (which had been added by section 12 of the EUWA). Section 30A(1) provided that:
An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.
[Section 30A(1) Scotland Act 1998]
However, no “freezing” regulations were ever made, and the power to make them expired on 31 January 2022. In March 2022 section 30A of the Scotland Act was repealed. This means that in principle the Scottish Parliament has legislative competence in all areas of retained EU law in devolved areas.
Most of the EU (Withdrawal) Act 2018 is, however, a “protected enactment” which the Scottish Parliament cannot modify. This means that the Scottish Parliament cannot make provision for the status or interpretation of retained EU law that is inconsistent with the protected provisions of the EU (Withdrawal) Act 2018. The Scottish Parliament cannot therefore change the way retained EU law is interpreted or how it relates to pre-EU exit legislation.
UK Government reviews of Retained EU law
Last year the UK Government announced two reviews of retained EU law – one on substance and one on status. There had been little detail to date on these reviews, but on 22 June 2022 the UK Government published a dashboard of REUL as the conclusion of its review into the substance of REUL ‘to determine which departments, policy areas and sectors of the economy contain the most REUL’.
A ‘Brexit Freedoms Bill’
A ‘Brexit Freedoms Bill’ was announced in February 2022 and was included in the Queen’s Speech but has not yet been introduced in the UK Parliament.
The briefing notes for the Queen’s Speech state that the Bill’s purpose is to “Fulfil the manifesto commitment to end the supremacy of European law and seize the benefits of Brexit by ensuring regulation fits the needs of the UK, which in turn will enable economic growth”, and that the main provisions of the Bill will be:
● “Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.
● Removing the supremacy of retained EU law as it still applies in the UK.
● Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament.”
This would suggest that the Bill will provide extensive powers to Ministers to change and replace laws which fall into the category of retained EU law by secondary legislation (at present the mechanism for changing retained EU law is set out in EUWA).
In its ‘Benefits of Brexit’ paper [January 2022] the UK Government argued that the efficient use of parliamentary time required a change to the mechanism for amending retained EU law (i.e. a change to enable amendment by secondary legislation), stating that:
A targeted power would provide a mechanism to allow retained EU law to be amended in a more sustainable way to deliver the UK’s regulatory, economic and environmental priorities.
During questions on the statement in connection with the UK Government’s retained EU law dashboard, the Minister for Brexit Opportunities and Government Efficiency was asked whether the UK Government “will seek a legislative consent motion [on the ‘Brexit Freedoms Bill’] from Pàrlamaid na h-Alba, and from other devolved legislatures, and if so, whether they intend to respect the decisions of those Parliaments”. Responding, the Minister stated:
“obviously where there are devolved consequences from laws coming back from the European Union, the power to amend will be with the devolved authorities… We will indeed ask for legislative consent motions”.
The Cabinet Secretary for the Constitution, External Affairs and Culture made a statement to the Scottish Parliament on the afternoon of 22 June 2022 noting how the Scottish Government anticipates broad changes to retained EU law may affect Scotland saying:
“This Bill will create uncertainty for business, and threatens to fire the starting pistol in a race to the bottom on standards – on food, the environment, animal and plant health, and workers’ rights…Our policy of aligning with EU standards will be at risk…The Common Frameworks process, which is designed to manage divergence and alignment, looks to be side-stepped or ignored completely…We don’t yet know the exact implications for the legislative programme for this Parliament… But we do know that if we want to maintain the legislation we will have to find a great amount of Government and Parliamentary time.”
Implications for the Scottish Parliament
In its report on the UK internal market [February 2022] the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee identified a “tension in the balance of relations between the Executive and the Legislature”, noting that:
“there is a risk that the emphasis on managing regulatory divergence at an inter-governmental level may lead to less transparency and Ministerial accountability and tension in the balance of relations between the Executive and the Legislature.”
If UK Government Ministers were to have additional powers to amend retained EU law in devolved areas the result could be more secondary legislation within the Scottish Parliament’s competence made in the UK Parliament.
Professor Tobias Lock and Sarah McKay (Senior Researcher, SPICe)