Commentary on Sections Part 2: Interpretation and Operation of Welsh Legislation Section 24 – References to direct EU legislation retained in domestic law after EU exit
124.Section 3 of the European Union (Withdrawal) Act 2018 provides for direct EU legislation that is operative immediately before exit day to be retained in the domestic law of the United Kingdom on and after exit day (in other words, once the United Kingdom ceases to be a member of the EU). The effect is that from exit day there are two versions of any direct EU legislation: the version that is retained in the domestic law of the UK (and which may be amended by other domestic law), and the version that forms part of EU law and applies in the remaining EU member States.
125.Section 24 applies where an Assembly Act or Welsh subordinate instrument enacted on or after exit day refers to a piece of direct EU legislation that has been retained in domestic law. It makes clear that the default position is that the reference is to the legislation as it forms part of domestic law, and not as it forms part of EU law. Section 25 will mean that the reference is also to the legislation as amended by any other domestic law at any time.
126.The direct EU legislation retained in domestic law consists of EU regulations, EU decisions and EU tertiary legislation, as well as certain provisions of the EEA agreement that have effect in EU law. Section 3 of the 2018 Act specifies the extent to which this legislation is retained in domestic law, and section 20(1) of that Act defines the phrases “domestic law”, “EU decision”, “EU regulation” and “EU tertiary legislation”. Those definitions are applied for the purposes of section 24 of the Act.
127.Section 20(1) of the 2018 Act also makes provision about the meaning of “exit day”. That provision is applied generally to Assembly Acts and Welsh subordinate instruments by Schedule 1 to the Act.
128.Section 24 has effect except to the extent that express provision is made to the contrary or the context requires otherwise. Its effect will therefore be overridden if an Assembly Act or Welsh subordinate instrument refers to a piece of EU legislation that has been retained in domestic law, but clearly intends to refer to the version of that legislation that continues to apply in the EU. If the reference is to the legislation as it forms part of EU law, section 25 will not be relevant but section 26 may be.