Commentary on provisions of Act
Sunset of EU-derived legislation
Section 1: Sunset of EU-derived subordinate legislation and retained direct EU legislation
- This section provides for the revocation of specified retained EU law at the end of 31 December 2023 ("the sunset").
- Subsection (1) provides that legislation listed in Schedule 1 (Sunset of subordinate legislation and retained direct EU legislation) will be revoked to the extent that it is stated in that schedule at the end of 31 December 2023.
- Subsection (2) sets out that Schedule 1 is split into two parts. The first part lists subordinate legislation and the second part lists retained direct EU legislation.
- Subsection (3) clarifies that amendments to other enactments made by legislation revoked under the sunset will be unaffected. For example, where an instrument or a provision made under section 2(2) ECA 1972 is revoked by the sunset, but had prior to that amended another piece of legislation, the amended legislation will be unaffected by the sunset of the instrument which amended it.
- Subsection (4) sets out a preservation power. It enables a relevant national authority (i.e. a Minister of the Crown or a devolved authority) to specify in regulations those instruments listed in Schedule 1 to which the sunset should not apply. Legislation listed on the Schedule which is specified in regulations made under this power will not be revoked at the end of 31 December 2023.
- Subsection (5) provides that the preservation power in subsection (4) may not be exercised after 31 October 2023.
Section 2: Revocation of retained EU rights, powers, liabilities etc
- This section repeals section 4 of EUWA on 31 December 2023, so that nothing retained as a result of that section is recognised, available or enforceable in UK law from that date.
- Section 4 of EUWA provided that EU rights, powers, liabilities, obligations, restrictions, remedies and procedures which were recognised and available in the UK legal system (via section 2(1) of the European Communities Act 1972), but which did not fall within section 3 of EUWA, continued to be recognised and available in domestic law following the end of the Transition Period and UK’s exit from the EU.
- Section 4 of EUWA consists largely of rights, obligations and remedies developed in case law of the CJEU which during the UK’s membership of the EU applied directly in domestic law, in accordance with that case law. It includes, for example, directly effective rights contained within the EU treaties and in EU directives. EU Treaties and EU directives do not generally apply directly in the domestic law of EU member states. However, directly effective rights are those provisions which are sufficiently clear, precise and unconditional as to confer rights directly on individuals and which could be relied on in national law without the need for implementing measures, where national law does not give full effect to them (Case 43/75 Defrenne II EU:C:1976:56).
- Since the UK left the EU, the effect of sections 4 and 5 of EUWA has been that the rights and obligations retained by that Act may override and lead to the disapplication of domestic legislation, when relied upon in proceedings before domestic courts as an element of the principle of EU law supremacy. Section 2 of this Act repeals section 4 of EUWA, and section 3 abolishes the principle of EU law supremacy as retained in section 5 of EUWA.
- The powers in sections 11 and 12 enable secondary legislation to be made by codifying elements of retained EU law (see section 13). This may include codifying rights and obligations that are removed from domestic law via the mechanism set out in subsections (2) to (4) of this section.
- Section 22(5) provides that the changes that this section makes do not apply in relation to events or acts occurring before the end of 2023. Accordingly, they do not affect legal proceedings brought after the end of 2023 that relate to events or acts which took place before that date.
