In the most recent chapter of the Brexit saga, legislation has come into force which fundamentally diminishes the impact of retained EU law in the UK and removes its superior status in our jurisdiction.
The technical bit
Although the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) was passed in June 2023, many of its provisions did not take effect until 1 January 2024. Some provisions required enabling legislation before coming into force; this took the form of the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No 1) Regulations 2023 (Commencement Regulations), passed on 12 December 2023.
What has changed?
The following changes took effect on 1 January 2024:
Sunset of EU rights, powers and liabilities
All rights, powers, liabilities, obligations, restrictions, remedies and procedures which formed retained EU law no longer apply in domestic law. This means that, for example, individuals can no longer rely on directly effective rights arising under EU treaties and directives.
Sunset of EU-derived legislation
The subordinate and retained direct EU legislation listed in Schedule 1 of the REUL Act is now expressly repealed, including, for example, the Posted Workers (Enforcement of Employment Rights) Regulations 2016.
Supremacy of EU law abolished
The principle of supremacy of EU law is no longer part of domestic law. Any provision of retained EU legislation must, so far as possible, be read and given effect in a way in which is compatible with all domestic enactments and is subject to them. Courts and tribunals are now empowered to make incompatibility orders to this effect.
Abolition of general principles of EU law
The Court of Justice of the EU has over time developed general legal principles to assist with interpreting the law. These include legal certainty, equal treatment, proportionality and respect for fundamental rights, although there is no definitive list of such principles. General principles of EU law no longer form part of domestic law.
Retained EU Law to be known as “assimilated law”
From 1 January 2024, we must now refer to all retained EU law (both legislation and case law) as “assimilated law”.
In view of these changes, the government has sought to fill any potential legal void in respect of worker rights by implementing new legislation on 1 January. See here for further details.
Transitional arrangements
Some of the most substantive changes “do not apply in relation to anything occurring before the end of 2023”, these are:
- Sunset of EU rights, powers and liabilities,
- Supremacy of EU law abolished, and
- Abolition of general principles of EU law.
This means that claims can still be brought that rely on, for example, general principles of EU law, providing the relevant actions or events took place before 1 January 2024.
Which provisions are still outstanding and not yet in force?
Section 6 of the REUL Act has not yet been brought into force. This sets out the new tests for courts to depart from assimilated case law, and establishes the new procedure for lower courts or tribunals to refer points of assimilated case law to higher courts. There is no indication as to when this provision will take effect.
Sarah Taylor