Q&As

To what extent are references in contracts to UK legislation and EU legislation affected by the European Union (Withdrawal) Act 2018?

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Produced in partnership with Eleonor Duhs of Bates Wells and Indira Rao MBE of Counsel for EU and International Law, House of Commons
Published on: 26 March 2021
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Where a contract contains a reference to legislation, the question may arise as to which version of the legislation is meant. The default position is that the standard rules of contract law for determining the meaning of a contract apply. These examples illustrate that the European Union (Withdrawal) Act 2018 (EU(W)A 2018) does not displace this position.

Example 1

‘In this contract, the term “rest period” shall have the meaning given in the working time Regulations 1998.’

In this example, the reference is to EU-derived domestic legislation. It is a non-ambulatory reference (unless there is anything in the rest of the contract or context to indicate otherwise). For an explanation of ambulatory and non-ambulatory references, see Q&A: What are the rules on the interpretation of ambulatory and non-ambulatory references to EU-derived legislation in UK legislation post-Brexit?

There is a provision in EU(W)A 2018

Eleonor Duhs
Eleonor Duhs

Partner and Head of Data & Privacy, Bates Wells

Eleonor specialises in privacy and information law. She was the UK Government’s lead lawyer in EU negotiations on the GDPR.
She has extensive, in-depth knowledge of the GDPR. She represented the UK in meetings in Brussels, drafted text for inclusion in the legislation, and worked with the European Commission, representatives from other EU Member States, regulators and stakeholders to develop the regime.  
She also has extensive experience of advising the UK Government on data protection and information law issues, including compliance and risk in high profile projects. 
She advises clients from central government, public bodies, financial institutions, retail companies, property management firms, IT service providers and MedTech companies on privacy law issues including tracking or monitoring of data subjects, collection, use and retention of personal data, data sharing, international data transfers, and the impact of Brexit on data protection.  
As a senior government lawyer Eleonor gained extensive experience of public and EU law. In addition to her work on data protection and information law in the Ministry of Justice she worked in the Department for Exiting the European Union where she led on aspects of the European Union (Withdrawal) Act 2018, the Withdrawal Agreement and the framework for the future UK-EU relationship. 
Eleonor was the Foreign and Commonwealth Office’s lead lawyer on the European Union (Referendum) Act 2015. She has also represented the UK at the United Nations Human Rights Council in Geneva.

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Indira Rao
Indira Rao, MBE

Solicitor, Counsel for EU and International Law, House of Commons

Indira Rao is Counsel for EU and International Law in the House of Commons. She has over 20 years of experience advising on EU law, public international law and constitutional and administrative law in Parliament and Government, following five years of experience at a Magic Circle law firm. She was the lead lawyer at the Foreign, Commonwealth & Development Office advising on legal issues arising from the UK’s withdrawal from the EU. Her previous roles include Senior Legal Adviser on EU and International Law at the Attorney General’s Office, First Secretary (Legal) at the UK Permanent Representation to the EU and UK Agent to the Court of Justice of the European Union. She was also a legal adviser at the Department for Education and HM Treasury. In October 2020, she was awarded an MBE for services to British foreign policy. She is a co-author with Eleonor Duhs of Retained EU Law: A practical guide, (2020), The Law Society (forthcoming).

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Jurisdiction(s):
United Kingdom
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Key definition:
Reference definition
What does Reference mean?

A letter from a former employer to a prospective employer which provides information about an employee's employment with the former employee.

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