Introduction to retained EU law

11pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK's withdrawal from the EU. At this point in time (referred to in UK law as 'IP completion day'), key transitional arrangements came to an end and significant changes began to take effect across the UK's legal regime. For more details about IP completion day read our insight, what does IP completion day mean for the status of EU law in the UK?

This article provides an introduction to retained EU law and an overview of the key definitions and concepts with reference to the relevant provisions of the European Union (Withdrawal) Act 2018 (EU(W)A 2018).

This analysis was first published on Lexis®PSL.

What is retained EU law?

Retained EU law is a legal concept describing EU-derived rights and legislation preserved by UK law after the end of the Brexit transition period. It is a defined term under the EU(W)A 2018, and the collective term given to the body of EU-derived laws preserved and converted into domestic UK law when the repeal of the European Communities Act 1972 (ECA 1972) came into full effect.

Originally, retained EU law was intended to take effect on the day the UK ceased to be a Member State of the EU (exit day, 11 pm on 31 January 2020). This was amended by the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020), in order to reflect the transitional arrangements in the Withdrawal Agreement agreed between the UK and EU.

Under the transitional arrangements in the Withdrawal Agreement, the UK continued to be treated by the EU as a Member State for many purposes after exit day and was required to adhere to its obligations under EU law until the end of the transition or implementation period (defined in the implementing legislation as 'IP completion day', 11 pm on 31 December 2021).

The repeal of the ECA 1972 under EU(W)A 2018, effective on exit day, was subject to specific savings provisions introduced by EU(WA)A 2020, to allow for continued application of EU law in UK domestic law until IP completion day. The provisions of EU(W)A 2018 on retained EU law were also amended so that the adoption of retained EU law was deferred from exit day until IP completion day.

There is no specific list of EU legislation within the definition that lawyers can refer to. Whether a certain EU-derived legal provision, right or obligation etc is retained (and to what extent) is a matter of statutory interpretation.

How is retained EU law defined?

Retained EU law is defined in EU(W)A 2018, s 6(7). It is a wide-ranging term with potential application to thousands of EU-derived laws. The definition is broadly framed, and cross refers several other provisions of the EU(W)A 2018:

'"retained EU law" means anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of [section 2, 3, 4 or 6(3) and (6) of the EU(W)A 2018] (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);'

The sections of the EU(W)A 2018 cross-referred in the definition of retained EU law are as follows:

• section 2 - saves certain 'EU-derived domestic legislation' made under the European Communities Act 1972 (ECA 1972)
• section 3 - incorporates certain 'direct EU legislation' into UK law so far as 'operative' immediately before 'IP completion day'
• section 4 - saves certain rights, powers, liabilities, obligations, restrictions, remedies and procedures recognised and available in UK law immediately before IP completion day under ECA 1972
• section 6(3) - provides that questions on the meaning of retained EU law which has not been 'modified' by UK law will be determined in UK courts in accordance with relevant 'retained case law' and 'retained general principles of EU law' eg using a purposive approach compatible with EU Treaties and principles, taking into account the limits of EU competence on IP completion day
• section 6(6) - provides that questions on the meaning of retained EU law which has been 'modified' by UK law on or after IP completion day can be determined in accordance with relevant 'retained case law' and retained 'general principles of EU Law' that accord with the intention of the amendments

Several of the terms quoted above are specifically defined. Many, but not all, of the defined terms are set out in EU(W)A 2018, s 20. To assist, EU(W)A 2018, s 21 contains an index of defined terms and the relevant corresponding provisions. The key terms are considered in more detail below.

EU-derived domestic legislation

EU(W)A 2018 'saves' EU-derived domestic legislation which might otherwise have fallen away with the full repeal of the ECA 1972 , as well as other domestic legislation relating to EU and EEA obligations.

EU(W)A 2018, s 2 preserves EU-derived domestic legislation after IP completion day. For the purpose of retained EU law, EU-derived domestic legislation is saved as it had effect in UK law immediately before IP completion day.

EU-derived domestic legislation includes any enactment so far as:

• it is made under ECA 1972, s 2(2) or Sch 2 para 1A
• t is passed, made, or operating for a purpose mentioned in ECA 1972, s 2(2)(a) or (b)
• it relates to anything:
  • which falls into the above two categories, or
  • to which EU(W)A 2018, s 3(1) (incorporation of direct EU legislation) or EU(W)A 2018, s 4(1) (saving for rights under ECA 1972, s 2(1)) applies (see below), or
• it relates to the EU or the EEA

It includes:

• legislation that was passed or made before IP completion day but had not come into force by that date

• amendments to EU-derived domestic legislation made under the ECA 1972

It does not include:

• any enactment contained in the ECA 1972, EU(W)A 2018, or EU(WA)A 2020
• enactments specifically excluded in EU(W)A 2018, s 5 and Sch 1

EU-derived domestic legislation captures a wide range of domestic legislation implementing the UK's obligations while it was an EU Member State within the definition of retained EU law so as to enable its continued effect in domestic law after IP completion day.

One of the reasons for framing EU-derived domestic legislation so broadly was to ensure that the government could exercise the powers to amend it in order to ensure that it works effectively after IP completion day. The amendments to retained EU law include textual amendments, repeals, revocations and specific interpretive provisions, introduced in order to address or mitigate so-called 'deficiencies' in retained EU law. The powers to amend retained EU law have been applied liberally.

EU-derived domestic legislation is also referred to as 'preserved legislation', and is saved subject to the effect of relevant retained case law.

Direct EU legislation

EU(W)A 2018, s 3 is one of the key provisions of the EU(W)A 2018. It captures and 'incorporates' or 'converts' certain direct EU legislation into UK law, so far as operative in the UK immediately before IP completion day, so that it continues to operate in domestic law after Brexit, in spite of the underlying EU Treaties ceasing to apply to the UK.

Direct EU legislation includes English language versions of:

• any EU regulation, EU decision or EU tertiary legislation, as it had effect in EU law immediately before IP completion day, so far as:
  • it is applicable in the UK by virtue of the transitional arrangements under Part 4 of the Withdrawal Agreement
  • it is not an exempt EU instrument under EU(W)A 2018, Sch 6
  • ts effect is not reproduced in EU-derived domestic legislation
  • it does not already have direct effect by virtue of EU(W)A 2018, ss 7A or 7B
• any Annex to the EEA agreement, as it had effect in EU law immediately before IP completion day, so far as:
  • it is applicable in the UK by virtue of the transitional arrangements under Part 4 of the Withdrawal Agreement
  • it refers to, or contains adaptations of, anything falling within the above category, and
  • its effect is not reproduced in EU-derived domestic legislation
  • it does not already have direct effect by virtue of EU(W)A 2018, ss 7A or 7
• ​Protocol 1 to the EEA agreement as it had effect in EU law immediately before IP completion day, so far as:
  • it is applicable in the UK by virtue of the transitional arrangements under Part 4 of the Withdrawal Agreement
  • it does not already have direct effect by virtue of EU(W)A 2018, ss 7A or 7B

It does not include:

• any other EU instrument (eg EU directives)
• anything specifically excluded by EU(W)A 2018, s 5 and Sch 1
• any EU legislation which is not available in an English language version

Many of the terms used in this definition are individually defined:

'"EU regulation" means a regulation within the meaning of Article 288 of the Treaty on the Functioning of the European Union;

"EU decision" means-

(a) a decision within the meaning of Article 288 of the Treaty on the Functioning of the European Union, or

(b) a decision under former Article 34(2)(c) of the Treaty on European Union;

"EU tertiary legislation" means-

(a) any provision made under-

(i) an EU regulation,

(ii) a decision within the meaning of Article 288 of the Treaty on the Functioning of the European Union, or

(iii) an EU directive,

by virtue of Article 290 or 291(2) of the Treaty on the Functioning of the European Union or former Article 202 of the Treaty establishing the European Community, or

(b) any measure adopted in accordance with former Article 34(2)(c) of the Treaty on European Union to implement decisions under former Article 34(2)(c),

but does not include any such provision or measure which is an EU directive;'

"EU directive" means a directive within the meaning of Article 288 of the Treaty on the Functioning of the European Union;'

Unlike the provisions for EU-derived domestic legislation, EU(W)A 2018, s 3 contains more specific parameters, so that it catches the text (including recitals) of the English language versions of the relevant legislation 'so far as operative immediately before IP completion day'. The word 'operative' has a specific meaning:

'For the purposes of this Act, any direct EU legislation is operative immediately before IP 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 IP completion day,

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

(c) in any other case, it is in force immediately before IP completion day.'

Direct EU legislation is also known as 'converted legislation', and in each case incorporates the full text and recitals of the English language version of the instrument. Recitals may continue to be used in the interpretation of retained direct EU legislation, particularly where the instrument in question has not been modified by UK legislation (see below). If it has been modified, the recitals may still be used to aid interpretation, unless that is counter to the legislative intention of the modification (eg where recitals have been expressly excluded).

Saving for certain rights etc recognised under ECA 1972 s 2(1)

EU(W)A 2018, s 4 saves certain rights etc, which are not caught as EU-derived domestic legislation or direct EU legislation, but continue to be recognised and available in domestic law since IP completion day.

It includes:

• rights, powers, liabilities, obligations, restrictions, remedies and procedures which are recognised and available in UK law by virtue of ECA 1972, s 2(1) and are enforced, allowed and followed accordingly

It does not include:

• any rights etc incorporated into UK law as direct EU legislation under EU(W)A 2018, s 3
• directly effective rights etc (under the Withdrawal Agreement and related EEA EFTA and Swiss separation agreements) recognised as available and enforceable by virtue of EU(W)A 2018, ss 7A or 7B
• directly effective rights arising under an EU directive (including as extended to the EEA by the EEA agreement) unless of a kind recognised by the EU or UK courts in a case decided before IP completion day (whether or not as an essential part of the decision in the case)
• anything specifically excluded by the EU(W)A 2018, s 5 and Sch 1 eg the right to Francovich damages, or rights under the EU Charter of Fundamental Rights

EU(W)A 2018, s 4 saves directly effective rights under the EU Treaties (and other treaties brought into UK law under the ECA 1972 eg the EEA Agreement, Euratom and certain multilateral treaties entered by the UK by virtue of EU membership), which contain provisions conferring rights on individuals and can be relied on in domestic law without implementing measures. It also covers powers, liabilities, obligations, restrictions, remedies and procedures to the extent they have direct effect by virtue of ECA 1972, s 2(1).

Unlike the definition of direct EU legislation, which retains English language versions of specific texts and instruments, in this case it is the relevant right or obligation etc that is retained, rather than the text of the relevant Treaty provision. The explanatory notes to the EU(W)A 2018 included an illustrative list of such rights (cross referring the relevant Articles of the Treaty on the Functioning of the European Union (TFEU)) eg:

• Article 18 TFEU―non-discrimination on ground of nationality
• Article 112 TFEU―non-discrimination in indirect taxes
• Article 157 TFEU―equal pay

Directly effective rights may also arise under international agreements between the EU and third countries, applicable in the UK by virtue of EU membership and incorporation under the ECA 1972, as well as certain multilateral agreements to which either or both the EU and UK are a party.

An example provided is the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. A further example is the Hague Convention of 30 June 2005 on Choice of Court Agreements.

Retention of directly effective rights etc under EU(W)A 2018, s 4 is subject to the government's right to amend or repeal provisions which have no practical application, or which make provision for reciprocal arrangements that are no longer recognised or appropriate. Rather than being expressly excluded from retained EU law, the provisions of EU(W)A 2018 allow for such rights to be retained and immediately repealed or amended. An example is the Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019, which provided for the cessation of certain directly effective rights (concerning freedom of establishment and free movement of services among other things) retained in domestic law under EU(W)A 2018, s 4.

Summary of inclusions and exclusions

The following table summarises the legislative intention for retained EU law inclusions as set out in the explanatory notes to the EU(W)A 2018:

Retained EU law includes both preserved and converted legislation:
Preserved legislation	Converted legislation
The EU(W)A 2018 preserves the following domestic legislation as it existed immediately before IP completion day: secondary legislation made under ECA 1972, s 2(2) or Sch 2 para 1A other primary and secondary legislation with the same purpose as regulations under ECA 1972, s 2(2) Other domestic legislation which relates to the above, or to converted legislation, or otherwise relates to the EU or EEA.	The EU(W)A 2018 converts and incorporates the following as it existed immediately before IP completion day into domestic law: direct EU legislation (so far as operative): EU regulations EU decisions EU tertiary legislation • direct EU legislation as it applies with adaptations for the EEA Any other rights recognised as available and previously enforced in domestic law through ECA 1972, s 2(1) (eg directly effective rights contained in EU Treaties).

The following table provides examples of legislation that the UK indicated a specific intention to retain to some extent (subject to any amendments, repeals and revocations):

Preserved legislation
Converted legislation
EU-derived domestic legislation Airport Charges Regulations 2011, SI 2011/2491 Civil Aviation (Insurance) Regulations 2005, SI 2005/1089 Consumer Credit (Disclosure of Information) Regulations 2010, SI 2010/1013 Electricity Supplier Obligations (Amendment & Excluded Electricity) Regulations 2015, SI 2015/721 Public Contracts Regulations 2015, SI 2015/102 Working Time Regulations 1998, SI 1998/1833	Direct EU legislation Regulation (EU) 648/2012, European Market Infrastructure Regulation (EMIR) Regulation (EU) 2016/679, General Data Protection Regulation (GDPR) Regulation (EU) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation (EC) 785/2004 on insurance requirements for air carriers and aircraft operators	Rights etc. Certain rights under TFEU Certain rights under the EEA Agreement Certain rights and processes under the Hague Convention on Choice of Court Agreements Certain rights under the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

Supporting information on the EU(W)A 2018 published by the government also included a summary list of exclusions from retained EU law. Examples include:

• EU legislation which has never applied to the UK (eg because it relates exclusively to the operation of the Eurozone, or in areas in which the UK has opted-out for instance in the area of freedom, security and justice)
• EU directives (instead, the domestic implementing legislation is preserved)
• changes to EU law which were stated to apply after IP completion day (subject to the UK's obligations under the Withdrawal Agreement)
• the text of the EU Treaties themselves, or the Articles within those Treaties (except to the extent specified)
• the EU Charter of Fundamental Rights
• the right to Francovich damages (damages available for breach of EU law by a Member State)
• the principle of supremacy of EU law (unless there is a conflict between pre-IP completion day domestic law and retained EU law, in which case the principle continues to apply as far as relevant, along with the duty of consistent interpretation, which means that pre-IP completion day domestic law must be interpreted in accordance with retained EU law as far as possible)

EU(WA)A 2020 amended the EU(W)A 2018 provisions on retained EU law to clarify that only EU legislation applicable in UK law under the transitional arrangements in Part 4 of the Withdrawal Agreement would be retained on IP completion day. The inclusion of this provision meant that some of the exclusions under EU(W)A 2018, for instance for EU decisions addressed to Member States other than the UK, were removed.

Publication of retained EU law

EU(W)A 2018, s 21 and Sch 5 contain provisions on the publication of certain information relating to retained EU law by the Queen's Printer (which is part of The National Archives).

The provisions are intended to ensure that retained EU law is publicly accessible. However, although the key section on publication is entitled 'Publication of retained direct EU legislation etc.', this is potentially slightly misleading. It implies that there is a published source of retained direct EU legislation, ie specifying the instruments caught by the definition of 'retained direct EU legislation' and preserved in domestic law.

In fact, the duty to publish uses the different terms 'relevant instrument' and 'relevant international agreements', which are defined separately:

'"relevant instrument" means-

(a) an EU regulation

(b) an EU decision, and

(c) EU tertiary legislation;

"relevant international agreements" means-

(a) the Treaty on European Union

(b) the Treaty on the Functioning of the European Union

(c) the Euratom Treaty, and

(d) the EEA agreement;'

These are broad terms covering a range of instruments which may or may not have been retained. The Queen's Printer does not have a duty to specify whether the instruments published under this duty fall within the definition of retained EU law, or not. It is important to remember that an instrument being published by the Queen's Printer under these duties does not automatically mean it is retained in domestic law. That is a matter of statutory interpretation.

The Queen's Printer also has wide discretion to make arrangements for the publication of Court of Justice of the European Union decisions and opinions, other documents published by an EU entity, and anything else it considers useful in connection with its duty to publish. Government ministers may issue directions to the Queen's Printer specifying particular instruments or categories of instruments to be excluded from the duty to publish. These ministerial directions must also be published.

Retained case law

EU(W)A 2018, s 6 contains provisions on interpretation of retained EU law, including provisions governing the relationship between UK and EU courts and the status of EU case law following IP completion day.

EU(W)A 2018, ss 6(3) and 6(6), which are referred to in the definition of retained EU law, make provision for UK courts and tribunals determining questions on the meaning of retained EU law in accordance with relevant 'retained case law' and 'retained general principles of EU law', with variations depending on whether or not the retained EU law in question has been modified by UK law.

The relevant terms concerning retained case law are defined as follows:

'"retained 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-

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under [EU(W)A 2018] or by other domestic law from time to time);

"retained 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-

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under [EU(W)A 2018] or by other domestic law from time to time);

"Retained general principles of EU law" means the general principles of EU law as they have effect in EU law immediately before IP completion day and so far as they-

(a) relate to retained EU law, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles are are modified by or under [EU(W)A 2018] or by other domestic law from time to time);'

The relevance of retained case law and retained general principles of EU law for the purpose of interpretation of retained EU law will depend to some extent on whether the retained EU law in question has been modified (see below).

Modification of retained EU law

EU(W)A 2018 includes delegated powers to make secondary legislation modifying retained EU law in order to deal with deficiencies arising upon the UK's withdrawal from the EU. The term 'modify' is defined to include amendments, repeals and revocations.

• provisions that have no practical application in domestic law after IP completion day
• provisions concerning functions carried out on the UK's behalf, eg by an EU agency, which have ceased or are carried out domestically after IP completion day
• provisions governing reciprocal arrangements or rights between the UK and EU Member States that are no longer in place, appropriate or relevant after IP completion day
• other arrangements or rights, including EU Treaty rights that are not applicable after IP completion day
• provisions which are 'not clear' as to their effect as a consequence of the operation of the EU(W)A 2018, ss 2-6, Sch 1

The power to modify retained EU law, includes modifications to direct EU legislation (which did not exist on the UK statute book, as such prior to IP completion day). Retained direct EU legislation is split into two categories in connection with these powers. These categories are separately defined:

'"retained direct minor EU legislation" means any retained direct EU legislation which is not retained direct principal EU legislation;

"retained direct principal EU legislation" means-

(a) any EU regulation so far as it-

(i) forms part of domestic law on and after exit day by virtue of section 3, and

(ii) was not EU tertiary legislation immediately before IP completion day, or

(b) any Annex to the EEA agreement so far as it-

(i) forms part of domestic law on and after IP completion day by virtue of section 3, and

(ii) refers to, or contains adaptations of, any EU regulation so far as it falls within paragraph (a),

(as modified by or under this Act or by other domestic law from time to time).'

Retained direct principal EU legislation covers EU Regulations and Annexes to the EEA agreement referring to or amending EU Regulations. Retained direct minor EU legislation covers EU tertiary legislation and EU decisions. An example of the difference in terms of the status of these two categories of retained EU law is their treatment for the purpose of the Human Rights Act 1998 (HRA 1998):

Retained direct principal EU legislation is treated as primary legislation for the purpose of the HRA 1998, meaning that if such legislation is found to breach the HRA 1998, a court may issue a declaration of incompatibility in respect of the legislation but may not strike it down. Retained direct minor EU legislation is treated as subordinate legislation, unless it amends primary legislation (in which case it is treated as primary legislation), meaning that if it is found to breach the HRA 1998 a court may strike the legislation down.

Retained direct principal EU legislation covers EU Regulations and Annexes to the EEA agreement referring to or amending EU Regulations. Retained direct minor EU legislation covers EU tertiary legislation and EU decisions. An example of the difference in terms of the status of these two categories of retained EU law is their treatment for the purpose of the Human Rights Act 1998 (HRA 1998):

Retained direct principal EU legislation is treated as primary legislation for the purpose of the HRA 1998, meaning that if such legislation is found to breach the HRA 1998, a court may issue a declaration of incompatibility in respect of the legislation but may not strike it down. Retained direct minor EU legislation is treated as subordinate legislation, unless it amends primary legislation (in which case it is treated as primary legislation), meaning that if it is found to breach the HRA 1998 a court may strike the legislation down.

Interpretation of retained EU law

The approach to be taken in determining questions on the meaning, validity or effect of retained EU law in UK courts depends on whether it has been modified by UK law.

Questions on the meaning of retained EU law which has not been modified are determined in UK courts in accordance with relevant retained case law and principles, using a purposive interpretation where the meaning is unclear (taking into account the original purpose of the underlying EU law, compatibility with the EU Treaties and general principles of EU law, and the limits of EU competence).

Recitals may continue to be used in the interpretation of retained EU law post-exit where relevant, particularly in relation to un-modified retained EU law. Domestic courts can also refer to non-binding EU instruments, recommendations and opinions to assist with this interpretation.

Questions on the meaning of retained EU law which has been modified by UK law may also be determined in UK courts in accordance with relevant retained case law and principles where/to the extent that doing so accords with the intention of the modifications. Recitals may also be used to aid interpretation in these cases, unless that is counter to the legislative intention (eg where recitals have been expressly excluded from the retained version).

Beyond IP completion day, UK courts and tribunals are:

• not bound by subsequent decisions of the Court of Justice of the European Union
• not allowed to refer cases to the Court of Justice for preliminary ruling (except as provided under the Withdrawal Agreement)
• allowed to have regard to post-Brexit actions of the EU, including decisions of the EU courts which are relevant to any matter they are considering, but not to such an extent the court would consider itself bound

Save to the extent that certain appeal courts may depart from it (see below), retained EU case law is given the same precedent status in UK courts and tribunals as decisions of the UK Supreme Court and Scottish High Court of Justiciary. Though they may have 'regard' to the subsequent case law, UK courts and tribunals are bound by retained EU case law even if the EU courts later depart from it, until the higher UK courts exercise powers to depart from it.

The following 'relevant courts' may depart from retained EU case law:

• UK Supreme Court
• Scottish High Court of Justiciary (where it is the final criminal court of appeal in Scotland where there is no further route of appeal)
• Court of Appeal of England and Wales
• Court of Appeal of Northern Ireland
• High Court of Justiciary (when sitting as a court of appeal in relation to a compatibility issue or a devolution issue)
• Inner House of the Scottish Court of Session
• Lands Valuation Appeal Court in Scotland
• Registration Appeal Court in Scotland
• Court Martial Appeal Court

In deciding whether to depart from retained EU case law, the courts in scope applies the same test as the Supreme Court would apply in deciding whether to depart from its own case law (where it appears right to do so).

Note: The power to depart from retained EU case law is only relevant to the interpretation of retained EU law: 'It will not affect the interpretation of law which is not retained EU law'. For example, EU(W)A 2018, s 7A gives effect to the rights and obligations under the Withdrawal Agreement and Northern Ireland Protocol. These rights must be interpreted in line with the terms of the Withdrawal Agreement (including, where relevant, the jurisprudence of the Court of Justice of the European Union).

Tips for navigating retained EU law

Retained EU law is a complex definition and applying it requires an element of statutory interpretation. When looking at a particular enactment, provision or right etc, and trying to work out whether it is retained or not, it is useful to keep in mind the original aim behind it ie legal continuity, maintaining the legal status quo.

The original intention was that 'as a general rule, the same rules and laws will apply on the day after the UK leaves the EU as before' by:

• converting directly applicable EU law (eg EU regulations) into UK law
• preserving domestic laws which have been made to implement UK obligations under EU law
• incorporating other rights which are available in domestic law by virtue of ECA 1972, s 2(1) including the rights contained in EU Treaties, that could previously be relied on directly in domestic law without specific implementing measures, and
• providing that pre-exit case law of the Court of Justice of the European Union is given the same status of precedent in UK courts as decisions of the Supreme Court or the High Court of Justiciary in Scotland

When trying to determine whether an individual instrument, enactment or right etc is retained also remember:

• there are specific exceptions to retained EU law under EU(W)A 2018, s 5 (eg EU Charter of Fundamental Rights) and EU(W)A 2018, Sch 1 (eg the right to claim Francovich damages)
• there are also exempt EU instruments under EU(W)A 2018, Sch 6
• EU legislation which was not applicable during the implementation period by virtue of Part 4 of the Withdrawal Agreement is excluded
• to consider the impact of the Withdrawal Agreement and the savings, consequential and transitional provisions under EU(W)A 2018 (as amended)
• to keep the definitions index in EU(W)A 2018, s 21 handy and pay close attention to the precise wording and scope of each definition eg use of the words 'so far as' in these provisions means that they may include/exclude all or part of a particular instrument, enactment or right etc
• to check for any domestic legislation made using the legislative powers under the EU(W)A 2018, or any other legislation, which refers to and/or modifies the instrument, enactment or right etc in question

It is important to check for domestic legislation referring to the instrument you are looking at. As noted above, the government and devolved administrations have a network of specific powers to introduce legislation making modifications (including amendments, repeals and revocations) to retained EU law.

Tip: If amending legislation has been introduced using these powers, in relation to the instrument you are looking at, this will give you a head start, by confirming that it is considered in scope of retained EU law to some extent (subject to the amendments, repeals and revocations specified). Some provisions may be retained but immediately repealed.

Key provisions of the EU(W)A 2018

This table highlights the key provisions of the EU(W)A 2018 relevant to retained EU law:

Subject	Provision
Repeals	EU(W)A 2018, s 1―Repeal of ECA 1972 EU(W)A 2018, ss 1A-1B―Savings upon repeal of ECA 1972 EU(W)A 2018, Sch 9―Additional repeals
Retained EU law	EU(W)A 2018, s 2―Saving for EU-derived domestic legislation EU(W)A 2018, s 3―Incorporation of direct EU legislation EU(W)A 2018, s 4―Saving for rights etc under ECA 1972, s 2(1) EU(W)A 2018, s 5―Exceptions to savings and incorporation EU(W)A 2018, s 6―Interpretation of retained EU law EU(W)A 2018, s 7―Status of retained EU law EU(W)A 2018, Sch 1―Further exceptions to savings and incorporation EU(W)A 2018, Sch 6―Exempt EU instruments
Legislative powers	EU(W)A 2018, ss 8&-8C, 11―Dealing with deficiencies arising from withdrawal (and supplementary powers) EU(W)A 2018, s 22 and Sch 7―Regulations
Publication	EU(W)A 2018, s 15 and Sch 5―Publication and rules of evidence
Interpretation	EU(W)A 2018, s 20―Interpretation EU(W)A 2018, s 21―Index of defined expressions
Commencement, consequential and transitional provisions	EU(W)A 2018, s 23―Consequential and transitional provision EU(W)A 2018, s 25―Commencement EU(W)A 2018, s 8-Consequential, transitional, transitory and saving provision