EU Law in the UK Post-Brexit (L24) Flashcards
What are the important pieces of legislation post-Brexit?
European Union (Withdrawal) Act 2018.
- Regulates relationship between EU law and domestic law post-Brexit.
European Union (Withdrawal Agreement) Act 2020.
- Implements the Withdrawal Agreement, amends the EU (Withdrawal) Act 2018.
Also a range of other primary legislation to address issues previously dealt with wholly or partially by the EU.
- E.g. Fisheries Act 2020.
How did the UK overcome what would have been the issue of gaps in our legal system after the repeal of the ECA?
Avoided via concept of ‘retained EU law’.
What does s4 of the EU(W)A 2018 state?
‘Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day … are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972 … continue on and after exit day to be recognised and available in domestic law….’
What does s3 of the EU(W)A 2018 state?
‘Direct EU legislation, so far as operative immediately before, forms part of domestic law on and after exit day.”
This means EU regulations or provisions made under regulations.
What does s2 of the EU(W)A 2018 state?
‘EU derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit.’
This means secondary legislation made under ECA 1972 to give effect to EU law, or any other legislation designed to do the same.
- NOTE: this applies also to primary legislation which would NOT be affected by the repeal of the ECA.
Effect of these provisions: bundles up all of EU law which applied in the UK (either directly or via domestic law) when UK left EU and provides that it continued to apply in the UK as ‘retained EU law’.
How has the principle of supremacy changed since the Withdrawal Act?
Previous rule: Costa (stated by EUCJ), ECA 1972 (reflected s2(4)), Factortame (accepted), HS2 (does not take priority over domestic constitutional law).
New rule stated in 2018 Act s5.
Exceptions to savings and incorporation:
Supremacy of EU law doesn’t apply to domestic law passed after exit day.
But supremacy of retained EU law does apply to domestic law passed before exit day.
Can change post-exit day domestic law without stopping it from being subject to supremacy of EU law, if in keeping with intention of the change - i.e. to change domestic law to keep up with changing EU law.
How must courts use EU cases post-Brexit?
Basic rule:
- Courts not bound by EU cases decided after exit day (s6(1)).
But:
- May ‘have regard’ to them (s6(2)).
What are the rules for interpreting RETAINED EU LAW?
Courts bound by retained EU case law in interpreting retained EU case law (6(3)).
Meaning: “principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day, and so far as they … related to anything to which section 2, 3 and 4 applies …”
UKSC and HCJ not bound (s6(4)). When deciding whether to depart ‘the SC or the HCJ must apply the same test as it would apply in deciding whether to depart from its own case law.’ EWCA and CSIH later added.
What are s8 powers of the ECA?
Section 8: powers to make regulations such provision ‘to prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law.’
Exhaustive list of what it means to be deficient, but retained EU law ‘is not deficient merely because it does not contain any modification of EU law which is adopted or notified, comes into force or only applies on or after exit day.’
Henry VIII power (allows Ministers to amend primary and secondary legislation without going through Parliament).
Limits: tax, retrospectivity, criminal offences, public authorities, devolution statutes, Human Rights Act 1998.
Lasts until 2 years after exit day.
What is involved in the process of overseeing secondary legislation post-Brexit?
Parliamentary scrutiny of secondary legislation: affirmative or negative resolution procedure.
Concern about lack of oversight. Only some required by 2018 Act to be passed using affirmative procedure (voted in by both HC and HL).
Creation of ‘sifting committee’ (Sch7 para3). Allows recommendation of ‘upgrade’ to affirmative procedure. Not binding.
