10. Place of the EU in UK Constitution

Question 1

What is the principle of Supremacy of EU law?

Answer 1

EU law, through treaties, regulations, and directives is the supreme law across member states

Question 2

What are the two conditions for a provision of EU law to have direct effect?

Answer 2

1. Must be clear and precise, and must not leave any state any flexibility in application, and
2. Must be unconditional, i.e. must not depend on judge or public authority discretion

Question 3

What Act made EU law a source of law within the UK?

Answer 3

European Communities Act 1972

Question 4

How did the ECA 1972 make EU law supreme?

Answer 4

By providing that any legislation passed before or after the ECA had to be construed and have effect subject to EU law

Question 5

Under the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, when did the transition period end?

Answer 5

31 December 2020

Question 6

What is the definition of retained EU law?

Answer 6

Any law in effect on exit day on 31st of January 2020.

• any option mentioning completion day (31st of December) is wrong.

Question 7

What is EU-derived domestic legislation under the 2018 Act?

Answer 7

Legislation implementing EU directives which is preserved in UK law

Question 8

What is direct EU legislation under the 2018 Act?

Answer 8

EU regulations that were automatically converted into UK law

Question 9

What is directly effective EU law under the 2018 Act?

Answer 9

Any EU provision, e.g. Treaty, which had direct effect and which is preserved in UK law

Question 10

What is the principle of supremacy under the 2018 Act, and which laws does it apply to and not apply to?

Answer 10

If there is a conflict between UK law enacted before the end of the transition period and retained EU law, then the retained EU law will prevail.

This does not apply to UK law enacted after the end of the transition period.

Question 11

What does it mean that the UK courts will now have regard to the decisions of the CJEU?

Answer 11

They will consider them as persuasive precedent

Question 12

What is the importance of the distinction between retained EU and domestic case law?

Answer 12

Retained EU case law is binding on all domestic courts (other than SC and CoA), whereas no special status is granted to retained domestic case law

Question 13

What are the UK’s powers over retained EU law?

Answer 13

They can amend or repeal it, and any new law enacted after the IP prevails over Retained EU law.

Question 14

What is one of the main reasons why retained EU law might need to be amended and what are the UK’s powers in relation to this?

Answer 14

Because the EU law might have be drafted with reference to member states, the 2018 Act gives government the power to adopt secondary legislation to deal with such deficiencies

Question 15

After the end of the transition period, are devolved legislatures able to legislate contrary to EU law?

Answer 15

Yes, provided it is within their legislative competence and such has not been specifically excluded by the UK government

Question 16

What powers are granted to government ministers under the Withdrawal Act 2018?

Answer 16

for period of two years following end of the implementation period, temporary powers to correct deficiencies in Retained EU law that no olonger make sense.
* Do not need to pass 2ndary legislation, but power cannot be used to make significant changes.
* Devolved legislatures have same power concerning devolved matters.

Question 17

How will courts endeavour to interpret Retained EU law?

Answer 17

In accordance with Retained Case Law and **General Principles ** laid down before IP completion day.

Question 18

What are the Retained General Principles of EU law?

Answer 18

• Proportionality
• Subsidiarity
• Fundamental Rights
• Equality

Question 19

What does the general principle of subsidiarity provide?

Answer 19

Decisions should always be taken at the lowest possible level, or closest to where they will have their effect.