UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021

Retained EU law

22. As noted above, the EUWA establishes a new framework of retained EU law and this framework falls into three main categories:

• (i) EU-derived domestic legislation (e.g. domestic primary or secondary legislation which implements EU obligations);

• (ii) direct EU legislation (e.g. directly applicable EU legislation which had effect by virtue of section 2(1) of the ECA, such as EU Regulations, EU tertiary legislation and EU decisions);

• (iii) other directly effective EU law rights and obligations (this captures the remaining rights and obligations not covered by (i) and (ii)).

23. Modifications of retained EU law are also retained EU law as section 6(7) of the EUWA makes clear that “retained EU law” means (i), (ii) and (iii) above including that body of law as it is “added to or otherwise modified by or under” the EUWA or other domestic law from time to time. The effect of section 6(7) of the EUWA, however, is not that all legislative amendments to retained EU law will automatically be included under the retained EU law umbrella: this will ultimately depend on the significance of any such amendment.

24. Section 7 makes provision about the status of retained EU law and restricts the way in which categories of retained EU law within (ii) and (iii) above may be amended by primary and subordinate legislation. It is clear from section 7 that there are no restrictions on powers contained in future primary legislation.