Retention of F24saved EU law at end of implementation period

Annotations:
Amendments (Textual)

I52Saving for EU-derived domestic legislation

1

EU-derived domestic legislation, as it has effect in domestic law immediately before F2IP completion day, continues to have effect in domestic law on and after F2IP completion day.

F172

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3

This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) F7and section 5A (savings and incorporation: supplementary).

I9C5C33Incorporation of direct EU legislation

1

Direct EU legislation, so far as operative immediately before F5IP completion day, forms part of domestic law on and after F5IP completion day.

2

In this Act “direct EU legislation” means—

a

any EU regulation, EU decision or EU tertiary legislation, as it has effect in EU law immediately before F13IP completion day and so far as—

F23ai

it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,

F14bi

it neither has effect nor is to have effect by virtue of section 7A or 7B,

i

it is not an exempt EU instrument (for which see section 20(1) and Schedule 6), F20and

F8ii

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

iii

its effect is not reproduced in an enactment to which section 2(1) applies,

b

any Annex to the EEA agreement, as it has effect in EU law immediately before F12IP completion day and so far as—

F21ai

it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,

bi

it neither has effect nor is to have effect by virtue of section 7A or 7B,

i

it refers to, or contains adaptations of, anything falling within paragraph (a), and

ii

its effect is not reproduced in an enactment to which section 2(1) applies, or

c

Protocol 1 to the EEA agreement (which contains horizontal adaptations that apply in relation to EU instruments referred to in the Annexes to that agreement), as it has effect in EU law immediately before F19IP completion day and so far as—

i

it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement, and

ii

it neither has effect nor is to have effect by virtue of section 7A or 7B.

3

For the purposes of this Act, any direct EU legislation is operative immediately before F16IP completion day if—

a

in the case of anything which comes into force at a particular time and is stated to apply from a later time, it is in force and applies immediately before F16IP completion day,

b

in the case of a decision which specifies to whom it is addressed, it has been notified to that person before F16IP completion day, and

c

in any other case, it is in force immediately before F16IP completion day.

4

This section—

a

brings into domestic law any direct EU legislation only in the form of the English language version of that legislation, and

b

does not apply to any such legislation for which there is no such version,

but paragraph (a) does not affect the use of the other language versions of that legislation for the purposes of interpreting it.

5

This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) F9and section 5A (savings and incorporation: supplementary).

F334Saving for rights etc. under section 2(1) of the ECA

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5C4Exceptions to savings and incorporation

F34A1

The principle of the supremacy of EU law is not part of domestic law.

This applies after the end of 2023, in relation to any enactment or rule of law (whenever passed or made).

A2

Any provision of F40assimilated direct legislation—

a

must, so far as possible, be read and given effect in a way which is compatible with all domestic enactments, and

b

is subject to all domestic enactments, so far as it is incompatible with them.

A3

Subsection (A2) is subject to—

a

section 186 of the Data Protection Act 2018 (data subject’s rights and other prohibitions and restrictions);

b

regulations under section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023.

F38A4

No general principle of EU law is part of domestic law after the end of 2023.

F361

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F362

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F363

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I34

The Charter of Fundamental Rights is not part of domestic law on or after F22IP completion day.

F395

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I1I76

Schedule 1 (which makes further provision about exceptions to savings and incorporation) has effect.

I3F107

Subsections F37(A1) to (6) and Schedule 1 are subject to relevant separation agreement law (for which see section 7C).

F358

In this section “domestic enactment” means an enactment other than one consisting of F41assimilated direct legislation.

5AF11Savings and incorporation: supplementary

The fact that anything which continues to be, or forms part of, domestic law on or after IP completion day by virtue of section 2 F42or 3 has an effect immediately before IP completion day which is time-limited by reference to the implementation period does not prevent it from having an indefinite effect on and after IP completion day by virtue of section 2 F42or 3.

I2I11C16Interpretation of F30assimilated law

I81

A court or tribunal—

a

is not bound by any principles laid down, or any decisions made, on or after F25IP completion day by the European Court, and

b

cannot refer any matter to the European Court on or after F25IP completion day.

I82

Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after F25IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.

I83

Any question as to the validity, meaning or effect of any F45assimilated law is to be decided, so far as that law is unmodified on or after F25IP completion day and so far as they are relevant to it—

a

in accordance with any F46assimilated case law F43..., and

b

having regard (among other things) to the limits, immediately before F25IP completion day, of EU competences.

I84

But—

a

the Supreme Court is not bound by any F47assimilatedEU case law,

b

the High Court of Justiciary is not bound by any F47assimilatedEU case law when—

i

sitting as a court of appeal otherwise than in relation to a compatibility issue (within the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a devolution issue (within the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998), or

ii

sitting on a reference under section 123(1) of the Criminal Procedure (Scotland) Act 1995,

F26ba

a relevant court or relevant tribunal is not bound by any F47assimilated EU case law so far as is provided for by regulations under subsection (5A), and

c

no court or tribunal is bound by any F47assimilated domestic case law that it would not otherwise be bound by.

I85

In deciding whether to depart from any F47assimilatedEU case law F1by virtue of subsection (4)(a) or (b), the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.

I8F275A

A Minister of the Crown may by regulations provide for—

a

a court or tribunal to be a relevant court or (as the case may be) a relevant tribunal for the purposes of this section,

b

the extent to which, or circumstances in which, a relevant court or relevant tribunal is not to be bound by retained EU case law,

c

the test which a relevant court or relevant tribunal must apply in deciding whether to depart from any retained EU case law, or

d

considerations which are to be relevant to—

i

the Supreme Court or the High Court of Justiciary in applying the test mentioned in subsection (5), or

ii

a relevant court or relevant tribunal in applying any test provided for by virtue of paragraph (c) above.

I85B

Regulations under subsection (5A) may (among other things) provide for—

a

the High Court of Justiciary to be a relevant court when sitting otherwise than as mentioned in subsection (4)(b)(i) and (ii),

b

the extent to which, or circumstances in which, a relevant court or relevant tribunal not being bound by retained EU case law includes (or does not include) that court or tribunal not being bound by retained domestic case law which relates to retained EU case law,

c

other matters arising in relation to retained domestic case law which relates to retained EU case law (including by making provision of a kind which could be made in relation to retained EU case law), or

d

the test mentioned in paragraph (c) of subsection (5A) or the considerations mentioned in paragraph (d) of that subsection to be determined (whether with or without the consent of a Minister of the Crown) by a person mentioned in subsection (5C)(a) to (e) or by more than one of those persons acting jointly.

I85C

Before making regulations under subsection (5A), a Minister of the Crown must consult—

a

the President of the Supreme Court,

b

the Lord Chief Justice of England and Wales,

c

the Lord President of the Court of Session,

d

the Lord Chief Justice of Northern Ireland,

e

the Senior President of Tribunals, and

f

such other persons as the Minister of the Crown considers appropriate.

I85D

No regulations may be made under subsection (5A) after IP completion day.

I86

Subsection (3) does not prevent the validity, meaning or effect of any F48assimilated law which has been modified on or after F25IP completion day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications.

F36A

Subsections (1) to (6) are subject to relevant separation agreement law (for which see section 7C).

7

In this Act—

  • F49“assimilated case law” means—

    1. a

      assimilated domestic case law, and

    2. b

      assimilated EU case law;

  • F49“assimilated domestic case law” means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before IP completion day and so far as they—

    1. a

      relate to anything to which section 2 or 3 applies, and

    2. b

      are not excluded by section 5 or Schedule 1,

    (as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

  • F49“assimilated EU case law” means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before IP completion day and so far as they—

    1. a

      relate to anything to which section 2 or 3 applies, and

    2. b

      are not excluded by section 5 or Schedule 1,

    (as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

  • F49“assimilated law” means anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2 or 3 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);

  • F50...

  • F50...

  • F50...

  • F50...

  • F44...

6DF32Incompatibility orders

1

This section applies if a court or tribunal decides, in the course of any proceedings—

a

that a provision of F51assimilated direct legislation is incompatible with, and by virtue of section 5(A2)(b) subject to, any domestic enactment, or

b

that a domestic enactment is incompatible with, and by virtue of section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023 subject to, a provision of F52assimilated direct legislation.

2

The court or tribunal must make an order (an “incompatibility order”) to that effect (in addition to any exercise of other powers that it may have in relation to the proceedings).

3

An incompatibility order may (among other things)—

a

set out the effect of the relevant provision in its operation in relation to that particular case;

b

delay the coming into force of the order;

c

remove or limit any effect of the operation of the relevant provision before the coming into force of the order.

4

Provision included in an incompatibility order may be made subject to conditions.

5

In this section—

  • “domestic enactment” has the same meaning as in section 5 of this Act;

  • “the relevant provision” means section 5(A2)(b) of this Act or section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023 (as the case may be).

I10C27Status of F31assimilated law

I41

Anything which—

a

was, immediately before exit day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and

b

continues to be domestic law on and after exit day by virtue of F15section 1A(2) or 1B(2),

continues to be domestic law as an enactment of the same kind.

F41A

Anything which—

a

was, immediately before IP completion day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and

b

continues to be domestic law on and after IP completion day by virtue of section 2,

continues to be domestic law as an enactment of the same kind.

F284A

F54Assimilated direct legislation F61... may only be modified by—

a

primary legislation, or

b

subordinate legislation so far as it is made under a power which permits such a modification by virtue of—

i

paragraph 3, 8(3), 11A, 11B or 12(3) of Schedule 8,

ii

any other provision made by or under this Act,

iii

any provision made by or under an Act of Parliament passed before, and in the same Session as, this Act, or

iv

any provision made on or after the passing of this Act by or under primary legislation.

I65

For other provisions about the status of F55assimilated law, see—

a

section 5 F53(A1) to (A3)F6and (7) (status of F55assimilated law in relation to other enactments or rules of law),

b

section 6 (status of F56assimilated case law F60...),

F18ba

section 7C (status of case law of European Court etc. in relation to F55assimilated law which is relevant separation agreement law),

c

section 15(2) and Part 2 of Schedule 5 (status of F55assimilated law for the purposes of the rules of evidence),

F29d

paragraph 16 of Schedule 8 (information about Scottish instruments which amend or revoke subordinate legislation under section 2(2) of the European Communities Act 1972),

e

paragraphs 19 and 20 of that Schedule (status of certain F57assimilated direct legislation for the purposes of the Interpretation Act 1978), and

f

paragraph 30 of that Schedule (status of F58assimilated direct legislation for the purposes of the Human Rights Act 1998).

F59I46

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