UK consumer law after withdrawal from the European Union («BREXIT»)
| Autor | Christian Twigg-Flesner |
| Cargo del Autor | Professor of International Commercial Law, University of Warwick (UK) |
| Páginas | 63-79 |
UK Consumer Law after withdrawal
from the European Union («Brexit»)
Christian TWIGG-FLESNER*
SUMMARY: 1. INTRODUCTION.—2. UK CONSUMER LAW AT THE TIME OF WITHDRAWAL FROM THE EU.—
3. DEALING WITH WITHDRAWAL: THE 2018 ACT.—4. IMMEDIATE CHANGES MADE TO UK CONSUMER
LAW.—5. THE TRADE AND CO-OPERATION AGREEMENT AND CONSUMER LAW.—6. FUTURE DEVELOP-
MENT OF UK CONSUMER LAW.—7. CONCLUSIONS.
ABSTRACT: This chapter explains the state of UK Consumer Law imme-
diately before Brexit. It then explains how the withdrawal from the EU
was effected through a statutory scheme which transferred EU legisla-
tion and case-law into the domestic law of the UK, and the immediate
changes made to UK Consumer Law as a result. It then turns to the im-
plications of the Trade and Cooperation Agreement, before commenting
on the first set of reform proposals made after the UK’s departure from
the EU.
RESUMEN: Este capítulo explica la situación del Derecho de los consu-
midores del Reino Unido inmediatamente antes del Brexit. A continua-
ción, se explica cómo se llevó a cabo la retirada de la UE a través de un
régimen legal que transfirió la legislación y la jurisprudencia de la UE al
Derecho interno de Reino Unido, y los cambios inmediatos realizados en
el Derecho del consumidor del Reino Unido como resultado. Finalmente,
se abordan las implicaciones del Acuerdo de comercio y cooperación, y se
comentan el primer conjunto de propuestas de reforma realizadas tras la
salida de Reino Unido de la UE.
1. INTRODUCTION
This contribution focuses on both the immediate and potential future
impact of the United Kingdom’s (UK) withdrawal from the European
Union (EU), commonly known as «Brexit». It will first summarise the
* Professor of International Commercial Law, University of Warwick (UK).
64 Christian Twigg-Flesner
state of UK Consumer Law before Brexit, before explaining the way in
which UK law provided for continuity after Brexit as well as the im-
mediate changes that were made to UK Consumer Law. It then turns to
explore the implications of the Trade and Cooperation Agreement for the
future trajectory of UK Consumer Law, before examining a first govern-
ment Consultation Paper on Consumer Law reform.
2. UK CONSUMER LAW AT THE TIME OF WITHDRAWAL FROM
THE EU
In the same way as all the other EU Member States, Consumer Law
in the UK has been a mixture of EU-derived legislation 1, legislation of a
domestic origin, as well as the general law of contract and tort.
Leaving aside the case-based common law rules, which are of gen-
eral application and not limited to consumer situations specifically, UK
legislation dealing with consumer issues has taken one of two forms:
(i) Acts of Parliament, enacted by Parliament using its legislative pro-
cesses; and (ii) Secondary legislation (statutory instruments), adopted
under an enabling power granted in an Act of Parliament. Typical exam-
ples of Acts of Parliament include the Consumer Protection Act 1987 2,
or the Consumer Rights Act 2015 3, both concerned exclusively with as-
pects of consumer law. Prior to the enactment of the Consumer Rights
Act 2015, there were consumer-specific provisions in Acts of Parliament
with a general scope, such as the Sale of Goods Act 1979 or the Supply of
Goods and Services Act 1982. An Act of Parliament is a form of domestic
legislation, enacted by both Houses of Parliament, and therefore has the
status of domestic law.
In contrast, secondary legislation can only be adopted by the govern-
ment where Parliament has created an enabling provision through pri-
mary legislation (i. e., an Act) which authorises the government (usually
through the relevant Secretary of State) to lay legislation before Parlia-
ment. Such secondary legislation takes the form of statutory instruments,
and these are widely used, whether for legislation applicable throughout
the UK/Great Britain or applicable in one or more of the constituent ju-
risdictions. Such statutory instruments can be adopted through one of
two procedures: (i) the negative resolution procedure: a statutory instru-
ment takes legal effect once it has been signed by the relevant Secretary
of State, but it can be annulled if a motion to that effect is moved and
passed in either House of Parliament; or (ii) the affirmative resolution
1 See e. g., G. HOWELLS, C. TWIGG-FLESNER and T. WILHELMSSON, Rethinking EU Consumer
Law, Abingdon, Routledge, 2017.
2 Part I transposes the Product Liability Directive (85/374/EEC).
3 Part I contains provisions transposing the «old» Consumer Sales Directive (99/44/EC), as
well as the Unfair Contract Terms Directive (93/13/EEC).
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