Retained EU Law - Removal and Review?

The concept of retained EU law is the most important concept within the European Union (Withdrawal) Act 2018 (the Act).

It is the cornerstone concept which unites several other concepts within the Act into a coherent body of law. It is defined in the Act as anything which continues to be, or forms part of, domestic law, by virtue of sections 2, 3 or 4 of the Act.

In effect, the term describes the body of domestic law which was implemented while the UK was a member state of the EU. This includes both domestic legislation which implemented EU Directives and, also, EU Regulations which had direct effect without the need for implementing legislation.

Retained EU law occupies a unique place in domestic law. It has its own rules of statutory interpretation. It may only be modified in a prescribed manner. Only certain higher courts may depart from it.

In a statement to the House of Lords on 16 September, Lord Frost (Minister of State at the Cabinet Office) announced that the government is proposing a review of retained EU law. The government has, he said, 2 purposes in mind:

• First, to remove the special status of retained EU law. Lord Frost explained that “Unless we do this, we risk giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament.”
• Second, to review comprehensively the substantive content of retained EU law. Lord Frost said that the government’s intention “is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK.”

The statement suggests the size of the task at hand and the proposals will be important to all those who give, and all those who seek, legal advice on the meaning of domestic law.

No less important will be an understanding of how any proposed changes will affect the continuing obligations of the UK under the Withdrawal Agreement and the Trade and Cooperation Agreement. At the moment, no details are available; nor is the scope of this review exercise clear. It will not only be UK lawyers who await developments with interest.