What is Retained EU Law?
"Retained EU law" is a concept created, as part of Brexit, by the European Union (Withdrawal) Act 2018. Essentially, that act took a snapshot of EU law and created a new category of REUL as it applied to the UK at the end of the Brexit transition period and made provision for it to continue to apply. The effect of this has been that, although the UK is no longer formally bound by EU law, the reality is that much EU law (in various formats including court judgments, Acts of Parliament and statutory instruments) is still part of our governing legislation.
The Retained EU Law (Revocation and Reform) Act 2023 ("REUL Act") aims to bring this position to an end by facilitating the amendment, repeal and replacement of most REUL by the end of 2023, and assimilating any remaining REUL into UK by removing the special EU law features attached to it. One effect of this could be to introduce uncertainties in relation to established case law, on the basis that EU case law would no longer be binding on UK appeal courts.
What does this mean for pensions?
On 14 November 2023, the Grand Committee of the House of Lords approved, two draft regulations concerning pensions and equality provisions: the draft Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023 and the draft Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023. These regulations, which seek to codify past pensions judgments under EU law, are set to be enacted immediately before the end of 2023 covering some of the most significant and complex areas of pensions law including, amongst others: -
- the decision of the European Court of Justice's judgment in the case of Hampshire v PPF which requires member states to take "necessary measures" to protect accrued occupational pension scheme rights in the event of the scheme employer’s insolvency and which confirmed that members were entitled to receive at least 50% of the value of the accrued pension entitlement on the insolvency of their employer;
- the decision of the Court of Appeal in Hughes v PPF which found the PPF compensation cap to be unlawful on the grounds of age discrimination;
- the European Court of Justice's judgment in Allonby v Accrington which established that the directly effective right to equal pay requires that an opposite sex comparator is not necessary to demonstrate sex inequality, where sex discrimination arises as a result of provisions in legislation; and;
- changes the government committed to make to the Equality Act 2010 to reflect the Supreme Court’s judgment in Walker v Innospec confirming that restrictions on paying occupational pension benefits to same-sex partners and spouses were unlawful.
These codifications under the REUL Act reinforce past case law within the regulatory framework and, as noted above, are expressed to come into force "immediately before the end of 2023".
If you have any queries about the impact of the regulations, or anything else raised in this blog, please get in touch with a member of the pensions team.
