This Act is altering the position of EU law in Britain. It creates uncertainty, and may well reduce Equality Act (EqA) protection in certain areas. However regulations preserve some parts of EU case law on the EqA. The Labour government has “frozen” section 6 – this was to take effect from October 2024 but is no longer doing so.
REUL Act in summary
The Act
The Retained EU Law (Revocation and Reform) Act 2023 (legislation.gov.uk) (REUL Act) received royal assent at the end of June 2023. It was sometimes informally known as the Brexit Freedoms Bill.
Much of the REUL Act was brought into force from 1st January 2024, by reg 3, SI 2023/1363. S.6 was to take effect from October 2024 but is no longer doing so: below S.6 no longer takes effect in October 2024.
Before the REUL Act
Before the REUL Act, UK courts were normally (though not always) required to continue to interpret the Equality Act (EqA) in line with the relevant EU directive and pre-2021 EU Court decisions, in order to preserve legal certainty after Brexit. See Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023. It seems that this (largely) included the courts being required to depart from the words of the EqA, where necessary to comply with EU law, under the Marleasing principle.
From 1st January, 2024
For claims arising after the end of 2023, the REUL Act largely abolishes in Britain the supremacy of EU law (so far as it still remained), and general principles of EU law: Effect of EU law when interpreting Equality Act, from 2024>Supremacy of EU law ended on 31st December, 2023.
What effect does this have on disability discrimination rights under the EqA? In brief:
- Regulations have been passed to preserve the effect of some EU case law, retaining a wider meaning of disability in employment claims, and allowing claims for indirect discrimination by someone who does not have the protected characteristic but is put at the same disadvantage: Effect of EU law when interpreting Equality Act, from 2024>EqA regulations preserve parts of EU law.
- What of other instances where the courts have gone beyond the wording of the EqA, based on EU law, but which are not included in the regulations? The position is unclear here. From the start of 2024, the REUL Act may reduce EqA protection in these areas, or some of them: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.
- The REUL Act may also lead to broader uncertainty under the EqA, particularly on the common issue of what is “proportionate”: Effect of EU law when interpreting Equality Act, from 2024>Proportionality.
Also from the start of 2024, under s.5 REUL Act “retained EU law” is renamed “assimilated law”. The EqA employment provisions appear to be “assimilated law”: Brexit: Effect of EU law when interpreting Equality Act, from 2024>Technical note: Why the Equality Act employment provisions are “assimilated law”.
If and when s.6 takes effect
If and when brought into force (below S.6 no longer takes effect in October 2024), s.6 REUL Act on when higher courts in the UK can depart from EU Court decisions may encourage higher courts to depart from EU case law more often, potentially reducing protection under the EqA, and creating greater uncertainty. S.6 also has new mechanisms to refer these questions to higher courts, creating delays. Below Effect of s.6 REUL Act (if and when it comes into force).
Easier for UK higher courts to override EU cases, and referral system (not yet in force)
S.6 no longer takes effect in October 2024
S.6 REUL Act would make it somewhat easier for higher courts to depart from pre-2021 EU case law, and enable lower courts to refer cases to higher courts to ask whether they should depart from it.
S.6 was to take effect from 1st October 2024. However, this is no longer happening. In September 2024 the Labour government issued SI 2024/976, repealing the regulations which would have brought s.6 into force.
Accordingly s.6 will not come into effect, at least on that date. It is unclear whether s.6 will be brought into force in future:
“the new Government intends to look at this issue again in the wider context of its work to reset UK relations with the EU. It remains open to the Government to bring forward further regulations at any point in the future to bring section 6 into force.”
Open letter from the UK government to the Bar Council, quoted in The Cheshire Cat’s grin: section 6’s appearance and disappearance (eurelationslaw.com), 1st October, 2024. See too paragraph 24 of the government’s Assimilated Law Parliamentary Report: June 2024 to December 2024 (pdf, gov.uk), January 2025.
As quoted at that eurelationslaw.com link, the UK government pointed out that it is already possible for higher courts in the UK to depart from pre-2021 EU case law on appeal, and freezing the introduction of s.6 does not change that. I would add, though, that the freezing does mean it is not easier to depart from that case law.
Links:
- The Cheshire Cat’s grin: section 6’s appearance and disappearance (eurelationslaw.com), 1st October, 2024
- Uncertainty over legal certainty: New provisions to encourage UK courts to depart from EU case law shelved as UK seeks to reset its relations with the EU (gowlingwlg.com), 30th September, 2024
- Planned new provisions to encourage UK courts to depart from EU case law will no longer come into force on 1 October (herbertsmithfreehills.com), 26th September 2024.
Effect of s.6 REUL Act (if and when it comes into force)
Under s.6 REUL Act, as at present, only the Supreme Court, Court of Appeal and equivalent “higher” courts would have power to depart from pre-2021 EU court decisions. However, if and when s.6 REUL Act comes into force:
- S.6 REUL Act would alter the test for when the higher courts can depart from pre-2021 EU court decisions, or from their own (British) pre-2021 EU law decisions: below. The previous rule seemed to be that higher courts should “normally” treat pre-2021 EU court decisions as binding, but the new rules would give the higher courts somewhat greater flexibility: See Brexit: Effect of EU law when interpreting Equality Act, from 2024>Technical note: S.6 REUL Act if and when it comes into effect.
- The amendments in s.6 REUL Act would allow lower courts who can’t themselves overrule pre-2021 EU case law – including employment tribunals and employment appeal tribunals – to refer the issue to higher appeal courts who can. It would therefore be easier for cases to get to the level of higher courts who could (if the higher court decides it is appropriate) decide that lower courts should depart from pre-2021 EU case law in a particular context. This is all under provisions added by s.6(8) REUL Act. See Brexit: Effect of EU law when interpreting Equality Act, from 2024>Lower courts: Referring issues to higher courts (from October 2024). (Also on this in the context of the wider meaning of disability, see Disability: ‘Normal day-to-day activities’>Technical note: Should pre-2021 case law on wider definition of disability continue to apply?)
Lower court cases may be delayed while the issue of whether to follow EU case law is referred to higher courts. These courts may be struggling to deal with a large number of such referrals on different pieces of legislation.
Link: The role of the courts regarding assimilated law from October 2024 (eurelationslaw.com), June 2024.
Northern Ireland
In Northern Ireland the Windsor Framework has effect in domestic law, under s.7A EU (Withdrawal Act) 2018, so courts in Northern Ireland cases may well give much more weight to EU law and EU court decisions than is required by the rules for the rest of the UK: Brexit: disability discrimination in Northern Ireland>Rights etc under Windsor Framework are part of UK law.
