The “Retained EU law” concept was established by the European Union (Withdrawal) Act 2018 in relation to Brexit. In essence, this act established a provision for a new category of REUL to continue to apply in the United Kingdom following the conclusion of the Brexit transition period, based on a snapshot of EU law at that time. In spite of the fact that the United Kingdom is no longer formally governed by European Union law, a substantial amount of EU law remains part of our governing legislation in various forms (including court judgements, Acts of Parliament, and statutory instruments).

The objective of the Retained EU Law (Revocation and Reform) Act 2023 (“REUL Act”) is to rectify this situation by enabling the modification, revocation, and substitution of the majority of REUL by the conclusion of 2023, and integrating any residual REUL into the United Kingdom by eliminating the distinctive EU law characteristics associated with it. The potential consequence of this situation is the introduction of uncertainties concerning established case law, as UK appeal courts would no longer be bound by EU case law.

What are the implications for pensions?

Two proposed regulations pertaining to pensions and equality provisions were approved by the Grand Committee of the House of Lords on November 14, 2023. These regulations are the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023 and the Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023. These regulations, which aim to formalise previous pensions rulings in accordance with EU law, are scheduled to be implemented well in advance of the conclusion of 2023. They will govern several crucial and intricate domains of pensions law, including the following:

  • member states are obligated to implement “necessary measures” to safeguard accrued occupational pension scheme rights in the event of the scheme employer’s insolvency; members are entitled to at least 50% of the value of their accrued pension entitlement in the event that their employer declares insolvency; the European Court of Justice’s ruling in the Hampshire v. PPF case;
  • the Hughes v. PPF decision of the Court of Appeal, which ruled that the PPF compensation limit was unconstitutional due to age discrimination;
  • The judgement of the European Court of Justice in Allonby v Accrington, which established that in cases where sex discrimination results from legislative provisions, the directly effective right to equal pay does not require an opposite-sex comparator to demonstrate sex inequality; and;
  • The modifications to the Equality Act 2010 that the government pledged to implement in accordance with the ruling of the Supreme Court in Walker v Innospec, which affirmed the illegality of limitations on the provision of workplace pension benefits to same-sex partners and spouses.

As stated previously, these codifications pursuant to the REUL Act complement prior case law within the regulatory framework and are scheduled to take effect “immediately prior to the conclusion of 2023.”