Retained EU Law (Revocation And Reform) Act 2023

Assimilation of retained EU law

Section 3: Abolition of Supremacy of EU law

87. This section makes amendments to section 5 of EUWA which applies the principle of the supremacy of EU law in relation to any domestic legislation made on or before 31 December 2020. This section repeals the principle at the end of 2023 in relation to any domestic legislation, whenever made.
88. The supremacy principle in EU law means that EU law has the status of a superior source of law within the legal systems of the EU’s member states. Domestic laws must give way to EU law if they are found to be inconsistent with it. Sometimes referred to as the principle of the primacy of EU law, this core rule of EU law was established in the case law of the CJEU, beginning with Case 6/64 Costa v ENEL EU:C:1964:66.
89. A number of EU law propositions are founded on the supremacy principle, which have continued to operate through section 5 of EUWA and other provisions insofar as they relate to the relationship with domestic legislation made on or before 31 December 2020, including in particular:
    1. the principle of consistent interpretation, requiring that, so far as possible, domestic courts must interpret national legislation consistently with provisions of EU law that they give effect to;
    2. the conflict rule requiring domestic legislation to give way to provisions of RDEUL (see glossary), where a consistent interpretation of the two is not possible;
    3. the direct effect of rights and obligations contained in provisions of EU law that are not RDEUL, which domestic legislation must give way to in the event of inconsistency, if those rights and obligations are sufficiently clear, precise and unconditional to have direct effect; and
    4. the principle that courts should interpret domestic legislation and RDEUL consistently with relevant general principles of EU law.
90. All of these aspects of the principle are addressed in sections 2 to 8 of the Act.
91. In particular, section 3 (1) and (3) effect the repeal of the supremacy principle by replacing subsections (1) to (3) of section 5 of EUWA with new subsections (A1) to (A3).
92. Subsection (A1) ends the principle of supremacy after the end of 2023 in relation to all domestic legislation, whenever made. This has the effect of removing the principle of consistent interpretation in relation to all domestic legislation, and the conflict rule requiring domestic legislation to give way to RDEUL where a consistent interpretation is not possible.
93. Subsection (A2) establishes a new priority rule following the repeal of the supremacy principle, requiring RDEUL to be read and given effect in a way which is compatible with standard domestic legislation and, where the two conflict, for domestic legislation to take priority over RDEUL.
94. Subsection (A3) makes the new priority rule set out in subsection (A2) subject to section 186 of the Data Protection Act 2018 (DPA). Section 186 makes more specific provision as to the relationship of priority between various provisions of data protection legislation concerning data subject's rights, and other prohibitions and restrictions. Section 186 provides that any other enactment or rule of law that seeks to prohibit or restrict the giving of information or withholding of information applies only to the extent that it does not interfere with the obligations and rights in relation to personal data contained in specified provisions of the UK GDPR and DPA 2018. The only restrictions that can exist in relation to those obligations and rights are specified exemptions contained in the UK GDPR and DPA.
95. Subsection (A3) also provides that the new priority rule set out in subsection (A2) is subject to any provision to the contrary made in exercise of the power in section 7(1). That power enables secondary legislation to be made that specifies that domestic legislation, or specified provisions of that legislation, should be read and given effect in a way which is compatible with specified pieces of RDEUL, or specified provisions within that RDEUL, and that the relevant piece or provision of RDEUL should take priority where it conflicts with the relevant piece of domestic legislation.
96. Subsection (3) also: (a) amends section 5(7) of EUWA so that the provisions of section 5 of EUWA, as amended by this Act, remain subject to relevant separation agreement law as defined in section 7C of EUWA. "Relevant separation agreement law" is defined in section 7C(3) of EUWA and includes REUL required to implement the Withdrawal Agreement, EEA-EFTA separation agreement and Swiss citizens' rights agreement; (b) makes a consequential amendment to section 7(5)(a) of EUWA, in respect of its cross-reference to section 5 of EUWA, and (c) repeals paragraph 5(2) of Schedule 1 to EUWA. That paragraph clarifies how the principle of supremacy applies in the context of REUL, and will no longer be relevant following the repeal of the principle of supremacy.
97. Subsection (2) defines in section 5 of EUWA a "domestic enactment" as an enactment, other than one consisting of RDEUL. Following the changes being made by this section therefore, all enactments which are not RDEUL will take priority over RDEUL where they conflict.
98. Section 22(5) provides that the changes given effect by this section do not apply in relation to events or acts occurring before the end of 2023. Accordingly, they do not affect legal proceedings after that date that relate to acts or events which took place before that date.

Section 4: Abolition of general principles of EU law

99. This section amends EUWA, so that general principles of EU law are no longer part of UK law from the end of 2023.
100. The general principles are a part of EU law which the EU institutions and member states must comply with. The general principles are applied by the CJEU and national courts when determining the lawfulness of legislative and administrative measures within the scope of EU law, and they are also an aid to interpretation of EU law. Examples of the general principles include proportionality (Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA EU:C:2005:741), and protection of fundamental rights (Case 44/79 Hauer EU:C:1979:290).
101. Section 6(3) EUWA has provided that general principles of EU law have continued to have effect in domestic law following the UK’s exit from the EU, by requiring REUL to be interpreted consistently with them. However, pursuant to paragraph 2 of Schedule 1 to EUWA, general principles developed in CJEU case law after the end of the Transition Period following the UK’s exit from the EU do not form part of domestic law. Paragraph 3 of Schedule 1 to EUWA provides that the general principles may not be relied upon in proceedings to disapply or quash any legislation, rule of law or conduct.
102. Section 4 of this Act removes the remaining effects of general principles of EU law in domestic law, which are not already limited by these EUWA provisions. This means that from the end of 2023 our domestic courts will no longer apply these retained principles of interpretation which this Act removes, when they are interpreting and applying REUL (and, after the end of 2023, assimilated law). Instead, they will apply standard domestic principles of interpretation, including rules of interpretation provided for in this Act.
103. Subsection (2) will amend section 5 of EUWA by inserting a new subsection (A4) which ends the effects of general principles of EU law in domestic law from the end of 2023. It will also repeal section 5(5) of EUWA. Section 5(5) provided that fundamental rights and principles contained in general principles of EU law and rights saved by section 4 of EUWA continue to apply in UK law.
104. Subsection (3) makes a consequential amendment to section 6(3) of EUWA so that REUL is no longer required to be interpreted consistently with general principles by the courts. As set out in EUWA, section 6(3) provides that any question as to the meaning of unmodified retained EU law will be determined by the UK courts in accordance with relevant CJEU case law decided before the end of the Transition Period and general principles of EU law. This has meant, for example, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant materials such as the treaty legal base for a measure, its recitals and preambles, and the travaux preparatoires (working papers) leading to the adoption of the measure). The changes made by section 4 of this Act, mean that after the end of 2023, courts will no longer be bound to interpret assimilated law by such principles.
105. Subsections (4) and (5) make consequential amendments to sections 7 and 21 of EUWA, to omit references to retained general principles of EU law, as they will no longer form part of UK law after the end of 2023.
106. Subsection (6) makes consequential amendments to Schedule 1 to EUWA to remove the restrictions on general principles in paragraphs 2 and 3 which are rendered unnecessary by subsection (2) of this section.
107. Subsection (7) makes consequential amendments to the transitional provisions in paragraph 39 of Schedule 8 to EUWA, to remove the references to paragraphs 2 and 3 of Schedule 1 to EUWA. Schedule 8 contained transitional provisions concerning the effect of the restrictions on general principles in Schedule 1. These are unnecessary as the relevant paragraphs are removed from Schedule 1 to EUWA by subsection (6).
108. Section 22(5) of this Act provides that the changes given effect by this section do not apply in relation to events or acts occurring before the end of 2023. Accordingly, the abolition of general principles of EU law does not affect legal proceedings after the end of 2023 if those proceedings relate to acts or events which took place before the end of 2023.
109. The amendments to sections 5 and 6 of EUWA made by section 4 of this Act are subject to sections 5(7) and 6(6A) of EUWA. This means that the abolition of general principles of EU law remain subject to "relevant separation agreement law", so that these principles will continue to apply in so far as the application of EU law is required to implement the Withdrawal Agreement, EEA-EFTA separation agreement and Swiss citizens' rights agreement.

Section 5: Assimilated law

110. Section 5 establishes "assimilated law" as a new body of law. At all times after the end of 2023, REUL that remains in force will be known as "assimilated law". Assimilated law will be domestic law which was previously REUL, but which is no longer interpreted in line with the retained EU law principles of interpretation which from the end of 2023 will be removed from domestic law by sections 2 to 4 of the Act. New subsection (1) sets out that retained EU law and related terms (for example, retained direct EU legislation and retained case law), will be known as assimilated law and related terms after the end of 2023 as set out in the table below. Subsection (2) clarifies that the name retained EU law and related terms will continue to apply up until the end of 2023.

     At or before the end of 2023	After the end of 2023
     Retained EU law	Assimilated law
     Retained case law	Assimilated case law
     Retained direct EU legislation	Assimilated direct legislation
     Retained direct minor EU legislation	Assimilated direct minor legislation
     Retained direct principal EU legislation	Assimilated direct principal legislation
     Retained domestic case law	Assimilated domestic case law
     Retained EU case law	Assimilated EU case law
     Retained EU obligation	Assimilated obligation
     Retained EU law governing the CAP direct payment schemes	Assimilated law governing the CAP direct payment schemes
     Retained direct EU CAP legislation	Assimilated direct CAP legislation

111. Subsection (3) highlights that Schedule 2 to this Act, ‘"Assimilated law": consequential amendments’, will make amendments to change references to REUL or related terms in other relevant enactments to assimilated law and related terms
112. Subsection (4) clarifies that the references to retained EU law or related terms set out in the table in subsection (1) of this section are to be read as assimilated law or related terms after the end of 2023.
113. Subsection (5) clarifies that the renaming of retained EU law or related terms to assimilated law or related terms after the end of 2023 does not apply to the titles of enactments or references to those titles.
114. Subsection (6) provides that, by using the power conferred by section 19 of this Act (power to make consequential provision), a Minister of the Crown may:
     1. add new entries to the table in subsection (1) of this section to rename related terms of retained EU law to related terms of assimilated law, and add definitions for those things to subsection (7); and
     2. change other enactments to reflect changes made by subsection (1) so that references to REUL and related terms, may be changed to assimilated law and related terms. Under section 19 other enactments may also be amended to rename references to REUL as assimilated law, and related terms.
     3. Subsection (7) sets out definitions for the terms listed in subsection (1).