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Retention of existing EU lawU.K.

Valid from 31/12/2020

2Saving for EU-derived domestic legislationU.K.

(1)EU-derived domestic legislation, as it has effect in domestic law immediately before [F1IP completion day], continues to have effect in domestic law on and after [F1IP completion day].

F2(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) [F3and section 5A (savings and incorporation: supplementary)].

Textual Amendments

Commencement Information

I1S. 2 in force at 31.12.2020 by S.I. 2020/1622, reg. 3(a)

Valid from 31/12/2020

3Incorporation of direct EU legislationU.K.

(1)Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit 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 exit day and so far as—

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

(ii)it is not an EU decision addressed only to a member State other than the United Kingdom, and

(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 exit day and so far as—

(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 exit day.

(3)For the purposes of this Act, any direct EU legislation is operative immediately before exit 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 exit day,

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

(c)in any other case, it is in force immediately before exit 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).

Valid from 31/12/2020

4Saving for rights etc. under section 2(1) of the ECAU.K.

(1)Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before [F4IP completion day]—

(a)are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and

(b)are enforced, allowed and followed accordingly,

continue on and after [F4IP completion day] to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

(2)Subsection (1) does not apply to any rights, powers, liabilities, obligations, restrictions, remedies or procedures so far as they—

(a)form part of domestic law by virtue of section 3,

[F5(aa)are, or are to be, recognised and available in domestic law (and enforced, allowed and followed accordingly) by virtue of section 7A or 7B,] or

(b)arise under an EU directive (including as applied by the EEA agreement) and are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before [F6IP completion day] (whether or not as an essential part of the decision in the case).

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

Textual Amendments

Modifications etc. (not altering text)

C3S. 4(1) excluded (23.7.2020 for specified purposes) by Finance Act 2019 (c. 1), ss. 76(3), 79(1) (as substituted by 2020 c. 14, Sch. 12 para. 8(2))

Commencement Information

I2S. 4 in force at 31.12.2020 by S.I. 2020/1622, reg. 3(c)

5Exceptions to savings and incorporationU.K.

(1)The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.

(2)Accordingly, the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day.

(3)Subsection (1) does not prevent the principle of the supremacy of EU law from applying to a modification made on or after exit day of any enactment or rule of law passed or made before exit day if the application of the principle is consistent with the intention of the modification.

(4)The Charter of Fundamental Rights is not part of domestic law on or after exit day.

(5)Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).

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

[F8(7)Subsections (1) to (6) and Schedule 1 are subject to relevant separation agreement law (for which see section 7C).]

Textual Amendments

Commencement Information

I3S. 5(6) in force at 4.7.2018 for specified purposes by S.I. 2018/808, reg. 3(a)

6Interpretation of retained EU lawU.K.

(1)A court or tribunal—

(a)is not bound by any principles laid down, or any decisions made, on or after [F9IP completion day] by the European Court, and

(b)cannot refer any matter to the European Court on or after [F9IP completion day].

(2)Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after [F9IP 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.

(3)Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after [F9IP completion day] and so far as they are relevant to it—

(a)in accordance with any retained case law and any retained general principles of EU law, and

(b)having regard (among other things) to the limits, immediately before [F9IP completion day], of EU competences.

(4)But—

(a)the Supreme Court is not bound by any retained EU case law,

(b)the High Court of Justiciary is not bound by any retained EU 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,

[F10(ba)a relevant court or relevant tribunal is not bound by any retained EU case law so far as is provided for by regulations under subsection (5A),] and

(c)no court or tribunal is bound by any retained domestic case law that it would not otherwise be bound by.

(5)In deciding whether to depart from any retained EU case law [F11by 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.

[F12(5A)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.

(5B)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.

(5C)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.

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

(6)Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after [F9IP completion day] from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications.

[F13(6A)Subsections (1) to (6) are subject to relevant separation agreement law (for which see section 7C).]

(7)In this Act—

Textual Amendments

F9Words in s. 6 substituted (30.1.2020 for specified purposes, 31.1.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), ss. 26(1)(a), 42(7) (with s. 38(3), Sch. 5 para. 66); 2020 c. 2, s. 2(11)(c); S.I. 2020/75, reg. 4(i)

F11Words in s. 6(5) inserted (30.1.2020 for specified purposes) by European Union (Withdrawal Agreement) Act 2020 (c. 1), ss. 26(1)(c), 42(7) (with s. 38(3), Sch. 5 para. 66); 2020 c. 2, s. 2(11)(c)

F12S. 6(5A)-(5D) inserted (30.1.2020 for specified purposes, 19.5.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), ss. 26(1)(d), 42(7) (with s. 38(3), Sch. 5 para. 66); 2020 c. 2, s. 2(11)(c); S.I. 2020/518, reg. 2(l)

Modifications etc. (not altering text)

Commencement Information

I4S. 6(7) in force at 4.7.2018 by S.I. 2018/808, reg. 3(b)

I5S. 6 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

7Status of retained EU lawU.K.

(1)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 [F14section 1A(2) or 1B(2)],

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

(2)Retained direct principal EU legislation cannot be modified by any primary or subordinate legislation other than—

(a)an Act of Parliament,

(b)any other primary legislation (so far as it has the power to make such a modification), or

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

(i)paragraph 3, 5(3)(a) or (4)(a), 8(3), 10(3)(a) or (4)(a), 11(2)(a) 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.

(3)Retained direct minor EU legislation cannot be modified by any primary or subordinate legislation other than—

(a)an Act of Parliament,

(b)any other primary legislation (so far as it has the power to make such a modification), or

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

(i)paragraph 3, 5(2) or (4)(a), 8(3), 10(2) or (4)(a) 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.

(4)Anything which is retained EU law by virtue of section 4 cannot be modified by any primary or subordinate legislation other than—

(a)an Act of Parliament,

(b)any other primary legislation (so far as it has the power to make such a modification), or

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

(i)paragraph 3, 5(3)(b) or (4)(b), 8(3), 10(3)(b) or (4)(b), 11(2)(b) 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.

(5)For other provisions about the status of retained EU law, see—

(a)section 5(1) to (3) (status of retained EU law in relation to other enactments or rules of law),

(b)section 6 (status of retained case law and retained general principles of EU law),

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

(d)paragraphs 13 to 16 of Schedule 8 (affirmative and enhanced scrutiny procedure for, and information about, instruments which amend or revoke subordinate legislation under section 2(2) of the European Communities Act 1972 including subordinate legislation implementing EU directives),

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

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

(6)In this Act—

Textual Amendments

Modifications etc. (not altering text)

C5S. 7(2)(3) applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I6S. 7(2)(3) in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

I7S. 7(1)(6) in force at 31.1.2020 by S.I. 2020/74, reg. 2(a)