Brexit Flashcards
Key 4 provisions of the ECA that incorporated EU law into the legal systems of the UK?
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
What’s the process under which the UK withdrew from the EU governed by?
ART 50 TEU
Key 3 provisions under Art 50 TEU?
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)
What did the UK Gov originally try to do to initiate withdrawal process? Case?
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.
What did the UK gov in do retaliation to Miller?
Introduced a Bill into Parliament to provide the required authorisation. This was duly enacted as the European Union (Notification of Withdrawal) Act 2017.
Under what article is the process of withdrawal under?
Art 50
When did the UK formally leave the EU?
31 January 2020.
What are the two legal frameworks that provide the legal effect and consequences in UK law of the withdrawal from EU?
- • The European Union (Withdrawal) Act 2018 (‘EUWA 2018’)
- • The European Union (Withdrawal Agreement) Act 2020 (‘EUWA 2020’)
- Amended EUWA 2018 to implement withdrawal agreement
What agreement now governs the relationship between the UK and the EU? Key Article?
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.
Does EU law continue to apply in the UK during the transition period? What part and art?
Part 4, Art 127(1): Yes - continues to have legal effect
What’s the situation with any jurisprudence of the Court of Justice made before the end of the transition period?
s6 EUWA 2018: continues to be binding
What’s the situation with UK law that is incompatible with EU law during the transition period?
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.
What’s the situation with EU-derived domestic legislation passed before end of transition period?
s1B: preserved.
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?
Section 7A
What does s7A(3) EUWA do?
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…
What does s7C EUWA do?
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.
What’s the effect of case law of CoJ under Withdrawal Agreement?
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
What’s the effect of parliamentary sovereignty and the Withdrawal Agreement?
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.
What are the three forms of EU law that will be retained in domestic UK law under EUWA? What section?
ss.2 to 4:
1) EU-derived domestic legislation
2) Direct EU legislation
3) Other EU law
What is ‘EU-derived domestic legislation’? What happens to it?
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.
What is ‘direct EU legislation’? What happens to it?
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.
What is ‘Other EU law’? What happens to it?
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’…
What about EU law which continues to apply under the Withdrawal Agreement?
This continues to apply - governed by s7A EUWA 2018.
Under s6 EUWA, what will domestic courts do to determine the validity, meaning or effect of retained EU law?
- 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
