Retained EU law

Many things have changed since the United Kingdom left the European Union at the end of 2020 after almost 50 years of membership. One of the areas which has been significantly affected is law. Selected EU legislation which applied to the UK on 31 December 2020 is now part of UK domestic legislation. This has resulted in the emergence of a new and unique concept of law – retained EU law. This blog post will look closer at information resources which may help you to navigate this new area and better understand what it is about.

Retained EU law is defined and explained in the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020. In broad terms, EU retained law is composed of: EU-derived domestic legislation, direct EU legislation, and EU rights and obligations saved by EUWA 2018, s. 4.

The duty to publish retained EU law lies with the Queen’s Printer (the Chief Executive of The National Archives).

In order to fulfil this obligation, The National Archives created two new services:

  • The first is an EU EXIT WEB ARCHIVE which contains a collection of all relevant EU legislation as it as it stood at 11.00 p.m. on 31 December 2020. Think of it as a screenshot of the legislation on that day copied from the EU legal database – EUR-Lex. [It] includes Treaties, legislative acts, the Official Journal of the European Union, case law and other supporting materials, and judgements of the Court of Justice of the European Union.’
  • The second is an enhanced version of Legislation.gov.uk which now includes “Legislation Originating from the EU”. After the IP completion day at the end of this year, this retained legislation is no longer amended by the EU, only by the UK.

All amendments will be gradually added and revised versions of changed documents will be created. There is also a useful tool available to see point in time versions of legislation.

However, because of the huge volume of amendments (according the Legislation.gov.uk over 100,000 coming into force at 11 pm on 31 December 2020) this revision will take longer and may not be immediately available. You can either check the listings of changes – which is included when checking a piece of legislation – or you can check the amendments in the Changes to Legislation section of the database.

Books and commentaries have also been published which look at retained EU law in detail. For example:

Eleonor Duhs and Indira Rao, Retained EU law. A practical guide (Law Society Publishing 2021)

A practical guide focused specifically on the topic of retained EU law, which was published in 2021 by the Law Society and is available to be consulted in the Library.

EU legislation and UK law (published on Legislation.gov.uk)

Departing from retained EU case law: new Court of Appeal judgment (published on the EU Relations Law blog) [1/4/2021]

Route map for retained EU law: new Court of Appeal Judgment (published on the EU Relations Law blog) [31/3/2021]

Webinar: After Brexit: How to use Retained EU law in your Public Law practice from 2021 onwards (published on Cosmopolis blog) [26/2/2021]

Departure from retained EU case law by UK courts and tribunals – Law Society response (published on the Law Society website) [8/2/2021]

David Feldman: Departing from Retained EU Case law (published on the UK Constitutional Law Association blog) [11/1/2021]

Eleven Types of post-Brexit EU Law (published on the Oxford University – Faculty of Law website) [8/1/2021]

Retained EU law: a guide for the perplexed (published on the EU Relations Law blog) [28/12/2020]

Challenges to the validity of retained EU law (published on the EU Relations Law blog) [17/12/2020]

EU Retained Law: EU Law Post Brexit (Lincoln’s Inn lecture) [3/12/2020]

Government response to consultation. Response to the consultation on the departure from retained EU case law by UK courts and tribunals (Ministry of Justice) [October 2020]

The status of “retained EU law” (House of Commons Library) [30/7/2021]

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