If you’re in the process of studying EU, Public or Constitutional law now, then you need to read this post! It’s very likely that you’ll need to understand and refer to the concept in your exams, and to have a grasp what is now happening with Brexit. (If you have bought the relevant individual subject LLB guides, or the GDL guide, do read this as an update on your Brexit chapters).

The concept “Retained EU law” was introduced in the European Union (Withdrawal) Act 2018 (EU(W)A); this act was passed to deal with issues which were expected to arise when the UK left the European Union (the EU). That departure occurred at 11.00pm on 31st January 2020 (Exit Day) and the UK has now entered into the “implementation” or transition period which will end (according to the UK government’s current assertions) on 31st December 2020. If you have to talk about Brexit in an exam it will be important to understand the impact of these dates and not to get caught up in press rhetoric. During the implementation period the UK remains in the Single Market and is subject to most EU legislation, the time will be used to progress talks between the UK and EU to explore the possibility of agreeing a trade deal.

The UK legal system and the rights and obligations which arise under it are deeply enmeshed in the laws of the European Union and some action was required to ensure that the UK did not descend into legal chaos as it left the EU. The solution was the concept of “Retained law”. The term relates to the body of EU derived law which needed to be retained and converted into domestic law. The definition is very broad and the precise scope of the provision is unclear. In the (inevitable) event of a challenge it will be for the courts to determine whether or not a particular law is retained by reference to the usual laws of statutory interpretation. Specific laws which come under the “Retained law” umbrella are:

EU derived domestic legislation.
Direct EU legislation.
Some rights recognised under ECA 1972. This is a saving provision for “rights, powers, obligations, remedies and procedures” which apply under ECA 1972. Important rights under The Treaty on the Functioning of the European Union (TFEU) retained as a result of this provision include rights to equal pay and non-discrimination on grounds of nationality.
Case law relevant to retained law is itself retained.

You should note that under the EU(W)A there are delegated powers to introduce secondary legislation to modify Retained Law provisions.

After Exit Day the UK courts are not bound by subsequent decisions of the Court of Justice of the European Union and cannot refer cases to that court, they can however “have regard” to decision of the Court of Justice of the EU.

Expect continuing dynamic change in the law as a result of the UK’s exit from the EU. Check with your education provider whether your knowledge in this area must be up to date for the exams or if there is a cut-off date which applies.

If you want to read more about Brexit and the law or have an idea for an article yourself, check out our friends at The Student Lawyer, the number one source of free news and information created by law students for law students.