The Status of “Retained EU Law” in the UK after Brexit
As the UK prepares to leave the EU, the Government is converting most of EU law into a new type of domestic law known as “Retained EU Law”.
The European Union (Withdrawal) Act 2018 (EUWA) repeals the European Communities Act 1972 (ECA) effective on “exit day” (31 October 2019). In so doing, it removes the domestic constitutional basis for EU law having effect in the United Kingdom. However, this does not mean that EU law is of no consequence to the UK after this point. The EUWA also provides for the retention of most of that law, as it stands on exit day, by “converting” or “transposing” it into a freestanding body of domestic law. The intention of this is to provide legal certainty in the period immediately following EU exit, by (in effect) adopting a rulebook and set of institutional arrangements that is initially as close as possible to that which currently exists.
This new body of law is called “retained EU law” and will replicate several different sources of EU law as domestic equivalents. In practice, for example, this means (broadly) that the UK will retain EU regulations, decisions and tertiary legislation and elements of the EEA agreement as they existed on exit day, but the UK is specifically not retaining the principle of supremacy of EU law.