Brexit

Question 1

Key 4 provisions of the ECA that incorporated EU law into the legal systems of the UK?

Answer 1

s 2(1) - gave effect to EU law in UK
s 2(2) - provided power to make subordinate legislation to implement EU law/deal with issues under EU law
s 3(1) - provided that questions re. EU law to be decided re. CoJ
!s 2(4) - ‘any enactment passed or to be passed shall be construed and have effect subject to [EU Law]’.
--> KEY one - supremacy of EU law

Question 2

What’s the process under which the UK withdrew from the EU governed by?

Answer 2

ART 50 TEU

Question 3

Key 3 provisions under Art 50 TEU?

Answer 3

Art 50(1): permits any Member State to decide to withdraw from the EU
Art 50(2): provides for the withdrawal process to be initiated by the Member State formally notifying the European Council of its intention to withdraw - then needs to negotiate
Art 50(3): specifies that the parties have two years in which to reach agreement otherwise the Member State will automatically cease to be a member (European Council and state can agree to extend)

Question 4

What did the UK Gov originally try to do to initiate withdrawal process? Case?

Answer 4

UK Government was to use the royal prerogative to initiate the withdrawal process.
However, the Supreme Court ruled in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 that this would be unlawful under the United Kingdom’s constitutional requirements - could not alter domestic law.

Question 5

What did the UK gov in do retaliation to Miller?

Answer 5

Introduced a Bill into Parliament to provide the required authorisation. This was duly enacted as the European Union (Notification of Withdrawal) Act 2017.

Question 6

Under what article is the process of withdrawal under?

Answer 6

Art 50

Question 7

When did the UK formally leave the EU?

Answer 7

31 January 2020.

Question 8

What are the two legal frameworks that provide the legal effect and consequences in UK law of the withdrawal from EU?

Answer 8

1. • The European Union (Withdrawal) Act 2018 (‘EUWA 2018’)
2. • The European Union (Withdrawal Agreement) Act 2020 (‘EUWA 2020’)
   - Amended EUWA 2018 to implement withdrawal agreement

Question 9

What agreement now governs the relationship between the UK and the EU? Key Article?

Answer 9

Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. This is more commonly known simply as the ‘The Withdrawal Agreement’.
Article 4(1): provisions of the Withdrawal Agreement will have direct effect so long as they meet the conditions under EU law for doing so.

Question 10

Does EU law continue to apply in the UK during the transition period? What part and art?

Answer 10

Part 4, Art 127(1): Yes - continues to have legal effect

Question 11

What’s the situation with any jurisprudence of the Court of Justice made before the end of the transition period?

Answer 11

s6 EUWA 2018: continues to be binding

Question 12

What’s the situation with UK law that is incompatible with EU law during the transition period?

Answer 12

s1A EUWA; art 4(2) Withdrawal: UK legislation to be construed and have effect subject to EU law - disapply domestic law which is incompatible with the Withdrawal Agreement.
Principle of the supremacy of EU law continues to apply.

Question 13

What’s the situation with EU-derived domestic legislation passed before end of transition period?

Answer 13

s1B: preserved.

Question 14

What section of the EUWA provides for some EU law to continue to apply to certain ongoing matters after the end of the transition period?

Answer 14

Section 7A

Question 15

What does s7A(3) EUWA do?

Answer 15

Authorises the courts to disapply statutes where they are incompatible with the Withdrawal Agreement (re. supremacy of EU law).

7A: provides for the Withdrawal Agreement to override the EUWA 2018 itself…

Question 16

What does s7C EUWA do?

Answer 16

Requires questions as to the validity, meaning or effect of certain forms of domestic law to be decided in accordance with the Withdrawal Agreement - ‘separation agreement law’.
i.e. another route which requirement in 4(2) re. disapplication of domestic law which is incompatible with Withdrawal Agreement.

Question 17

What’s the effect of case law of CoJ under Withdrawal Agreement?

Answer 17

Art 4 Withdrawal Agreement: during; provisions of the Withdrawal Agreement are to be interpreted in conformity with the case law of the CoJ
After; article 4(5): courts and tribunals will not be bound by the principles and decisions of the CoJ made after the end of the transition period but may have regard to them

Question 18

What’s the effect of parliamentary sovereignty and the Withdrawal Agreement?

Answer 18

s.38 of the EUWA 2020 specifically reasserts that Parliament remains sovereign notwithstanding the insertion of these sections into the EUWA 2018.
Principle in Macarthys Ltd: Parliament retains the right to override EU law, as well as the Withdrawal Agreement, by using express words or at least specific words that disclose a deliberate intention to do so.

Question 19

What are the three forms of EU law that will be retained in domestic UK law under EUWA? What section?

Answer 19

ss.2 to 4:

1) EU-derived domestic legislation
2) Direct EU legislation
3) Other EU law

Question 20

What is ‘EU-derived domestic legislation’? What happens to it?

Answer 20

Any UK secondary legislation which was enacted under s.2(2) of the ECA or for one of the purposes in s.2(2) of the ECA, or which otherwise relates to the EU.: i.e. secondary legislation enacted for the purpose of implementing obligations under EU law etc.

Question 21

What is ‘direct EU legislation’? What happens to it?

Answer 21

Defined as any EU regulation, EU decision or EU tertiary legislation which is in force and applicable in domestic law immediately before the end of the transition period.
Two categories:
1. Direct principal EU legislation which refers to EU Regulations which were not tertiary legislation
2. Direct minor EU legislation which covers any other direct EU legislation which is not direct principal EU legislation.

Question 22

What is ‘Other EU law’? What happens to it?

Answer 22

s4 of the EUWA also retains “any other EU law which was applicable in UK law by virtue of s.2(1) of the ECA immediately before the end of the transition period”

HOWEVER:

excludes any rights and obligations under EU directives which ‘are not of a kind recognised’ by the EU courts or domestic courts in a case decided before the end of the transition period

• exclude rights and obligations conferred by a directive from having direct effect, unless they are of a ‘OF A SIMILAR KIND’…

Question 23

What about EU law which continues to apply under the Withdrawal Agreement?

Answer 23

This continues to apply - governed by s7A EUWA 2018.

Question 24

Under s6 EUWA, what will domestic courts do to determine the validity, meaning or effect of retained EU law?

Answer 24

• Use retained case law
• However; UK courts and tribunals will no longer be able to make preliminary references to the Court of Justice on questions of EU law
• NOT bound by cases decided by CoJ after transition period

Question 25

What domestic courts will NOT be bound by EU case law?

Answer 25

• Supreme Court

- Scotland’s High Court of Justiciary

Question 26

Will UK courts be bound by retained general principles of EU law?

Answer 26

Yes - however, the courts and tribunals will not be bound by any general principles which are not recognised by the Court of Justice before that date

Question 27

Is the Charter retained?

Answer 27

No - will no longer form part of UK law.

HOWEVER: s5(5) mitigates effect of this; making clear that -
• This does not affect the retention of any fundamental rights which existed at that time irrespective of the Charter. This will include, for example, any fundamental rights recognised as general principles of EU law.
• Moreover, any references in case law to the Charter are to be treated as if they were references to such retained fundamental rights.

Question 28

Is the state liability retained?

Answer 28

No longer available!

Question 29

What’s the case with supremacy of EU law?

Answer 29

Supremacy of EU law will continue to apply re. British law made before transition period but not law made after the end of that period.

Question 30

Can retained EU law be amended? (3)

Answer 30

Yes: s7 and sch8 EUWA: permits being modified:
• By an Act of Parliament
• By any other primary legislation. This refers to primary legislation of the devolved
assemblies in Scotland, Wales and Northern Ireland (see s.20)
• By subordinate legislation where it is made under a Henry VIII power to modify such retained EU law or to amend primary legislation.

Question 31

Summary question: effect of EU law in general before, during and after?

Answer 31

Before:
- ECA incorporated EU law into UK law - any enactment passed construed to have effect
- National law disapplied where conflict
During:
- EU law continues to apply - Withdrawal Agreement interpreted according to EU law
After:
- Some EU law continues to apply
- s1B EUWA 2018 preserves EU derived domestic legislation passed before end
- If not excluded by EUWA 2018, EU law retained - converted into British law. Capable of being amended by UK legislation.

Simple answer

• EU law which has been enacted into UK law will remain
• EU law which hasn’t, will be ‘retained’

Question 32

Summary question: effect of supremacy of EU law in general before, during and after?

Answer 32

Before:
- Supremacy of EU law
During: 
- Supremacy maintained
After:
- No longer supreme - can use EU law as guidance. Simply; UK Parliament is sovereign and supreme again.

Question 33

Summary question: effect of principles of EU law and fundamental rights in general before, during and after?

Answer 33

Before:
- Charter and principles apply
During:
- Continues to apply
After: 
- Charter will no longer apply however through case law etc. recognised through general principles, still protected.

Question 34

Summary question: effect of EU CASE law in general before, during and after?

Answer 34

Before:
- Principles of CoJ apply
During:
- Withdrawal Agreement interpreted in conformity with case law of CoJ - still aplies
After:
- UK Courts must interpret validity of retained EU law in accordance with retained case law
- bound by retained EU case law, not bound by CoJ decisions but may have regard
- No preliminary references to CoJ

Question 35

Summary question: does direct effect still apply?

Answer 35

STAYS BUT DEPENDENT

- Have to meet the conditions under EU law…

Question 36

Summary question: does INdirect effect still apply?

Answer 36

STAYS

Question 37

Summary question: does state liability still apply?

Answer 37

GONE.