‘Retained law’: defined
The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.
Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):
- ‘retained domestic case law’ means case law – ie principles laid down by, and any decisions of, a UK court or tribunal – as they apply immediately before exit day.
- ‘retained EU case law’ means any principles laid down by, and any
decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
- ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
- ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.
Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:
(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…
Cl 5 defined the intended status of retained EU law (see (3) above):
- Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
- Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
- Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.
The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.
Interpretation of ‘retained EU law’
Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.
Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).
After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).
All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.
Henry VIII powers
Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor  UKSC 39,  1 AC 1531,  3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:
 … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.
 … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.
Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:
(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—
(a) any failure of retained EU law to operate effectively, or
(b) any other deficiency in retained EU law,
arising from the withdrawal of the United Kingdom from the EU.
Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.