With 31 December 2020 fast approaching, the impact of Brexit is imminent but how exactly will the UK’s departure from the European Union affect the laws of England and Wales?
As we edge ever closer to “getting Brexit done”, we also near the day on which EU law will cease to hold supremacy over UK domestic law, a position it has enjoyed since the UK joined the European Economic Community in 1972. The Court of Justice of the European Union, for so long the ultimate arbiter of all matters relating to EU law, will relinquish its power to shape UK law and the Supreme Court will once again reign supreme, its Justices at liberty to depart from decades of EU legal precedent as they see fit.
Parliament will no longer be required to implement legislation from Brussels, instead passing laws of its own making but how will the courts give effect to this seismic constitutional shift and what will the legal implications of “taking back control” be?
The Withdrawal Act
The European Union (Withdrawal) Act 2018, as amended by its younger sibling, the European Union (Withdrawal Agreement) Act 2020 (the “Withdrawal Act”), is the vehicle through which these changes will come into force at 11pm on 31 December 2020, the day commonly referred to as Implementation Period Completion Day or “IP Completion Day”.
Essentially, it provides for three principal things to happen:
- The European Communities Act 1972, the statute that secured parliamentary approval for Ted Heath’s signing of the Treaty of Accession and took the UK into the European Economic Community, will be repealed
- Most of the EU law that applies in the UK immediately before IP Completion Day, will be retained in UK domestic law, and
- Government ministers will be given wide powers to amend that “retained EU law”, enabling them to make corrections to laws that would otherwise no longer operate appropriately once the UK has left the EU.
The effect of the Withdrawal Act will thus be to preserve existing EU law within the UK legal system but not as a “living” body of law.
EU law proper will continue to develop in line with decisions of the CJEU and legislation of the European Parliament but the “retained EU law” of the UK will be preserved, remaining as it was on IP Completion Day, subject, as discussed in more detail below, to modification by Parliament or interpretation by the UK courts.
Retained EU law
The provisions of the Withdrawal Act define what “retained EU law” will include. In essence, there are three constituent parts:
- EU-derived domestic legislation
Namely, primary legislation passed to implement EU obligations, statutory instruments that gave effect to EU Directives and implementing rules made by regulators under statutory powers.
- Direct EU Legislation
Any EU Regulation, EU Decision or EU tertiary legislation in force immediately before IP Completion Day. The Withdrawal Act treats Direct EU legislation as forming part of domestic law immediately after IP Completion Day.
- Directly effective rights
This third and final class of retained EU law includes "rights, powers, liabilities, obligations, restrictions, remedies or procedures" which are recognised and available in UK law by virtue of the 1972 Act. The purpose being to incorporate the rights conferred by EU treaties and directives that could be enforced by an EU citizen directly against their Member State in their domestic courts.
Exclusions from retained EU law
Whilst much of the EU law in effect immediately before IP Completion Day will be retained as UK domestic law, there are some caveats to be borne in mind:.
- Court supremacy
The 2018 Act granted specific powers to the Supreme Court (and the High Court of Justiciary in Scotland) to depart from pre-Brexit decisions of the CJEU, provided they the court in question applies the same test as the Supreme Court does when deciding whether to depart from its own case law, namely where it considers it "right to do so".
This provision in the 2018 Act was in fact widened by the 2020 Act to include “any other additional court or tribunal given the power by the government to depart from retained EU case law” and in October this year, following a Ministry of Justice consultation, the government duly extended that power to all courts at Court of Appeal level. In doing so, the government commented that this extension should allow EU case law to "evolve more quickly than otherwise might have been achieved", had the power been vested only in the Supreme Court. Our employment colleagues Lloyd Davey and Sarah Taylor have considered the effect of that extension in a separate article – you can find their excellent analysis here.
- Ministerial power to amend
As mentioned above, UK government Ministers will have the power to amend Retained EU law where it no longer operates appropriately within the UK. That power will include the ability to pass secondary legislation and, more controversially, use “Henry VIII” clauses to change primary legislation without parliamentary approval (through statutory instruments).
- The Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union codifies certain political, social, and economic rights for EU citizens and residents into EU law. As of IP Completion Day, it will no longer apply in the UK. However, its underlying rights and principles will be retained. The explanatory notes of the Withdrawal Act clarify matters, explaining that, “the Charter does not create new rights, but rather codified rights and Principles which already exist in EU law”. As such, while the Charter itself will not form part of domestic law after IP Completion Day, that will not mean a repeal of the underlying fundamental rights enshrined within it. Identifying underlying rights and principles of the charter which subsist may not however be entirely straightforward.
- Frankovic damages
In addition to the Charter of Fundamental Rights being expressly excluded, the Withdrawal Act also excludes the right, established by the CJEU (then the ECJ) in Francovich and Bonifaci v Italy (Cases C-6/90 and C-9/90), for citizens to claim damages from their own Member State in the event that it fails to implement or breaches EU law.
Interpretation of retained EU law
Freshly furnished with a “clear” idea of which EU laws are to be retained, the key question for any legal practitioner tasked with advising on the topic will be how to interpret it.
Section 6(3) of the Withdrawal Act provides that retained EU law will be interpreted in accordance with “retained EU case law”, described in the Act as “the principles laid down by and any decisions of the European Court (the CJEU) as they have effect in EU law immediately before exit day”.
Accordingly, lower courts and tribunals in the UK will remain obliged to apply pre-Brexit CJEU decisions when interpreting retained EU Law. As already mentioned, the Supreme Court, the High Court of Justiciary and Court of Appeal, are permitted to depart from CJEU decisions as and when they deem appropriate.
In contrast, no UK court or tribunal will be bound to follow EU legal developments after IP Completion Day. “Regard” may be had to “anything done by the European Court, another EU entity or the EU” but UK courts will no longer be obliged to follow such decisions and indeed will be guided by any post-Brexit rulings of the Court of Appeal or Supreme Court.
In a similar vein, amendments made to retained EU law after IP Completion Day are also capable of being determined in accordance with CJEU case law but only where that was Parliament’s intention, raising the inevitable question as to what Parliament’s intention was in any particular instance.
In a nutshell then, the higher courts of the UK will not be bound to follow even existing or “retained” EU law but nonetheless can choose to do so. They are, furthermore, not prevented from looking to Europe for guidance in the future where it is deemed appropriate to do so.
The principle of retained EU law is fairly simple to state and, on the face of it, provides a level of certainty. However, the sheer volume of case law and legislation, its complexity and inter-connection is likely to make identifying and dealing with questions of retained EU law rather more difficult in practice.
It may be that the UK finds itself in a situation famously summarised by Donald Rumsfeld when he said:
“There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns - the ones we don't know we don't know.”
The extension of the power to depart from pre-Brexit EU case law and the exclusion of the Charter of Fundamental Rights are two aspects of the Withdrawal Act that will undoubtedly cause some uncertainty in the interpretation of retained EU law, at least in the short term.
UK courts will retain a snapshot of EU law as at IP Completion Day and now have the power to interpret and even redefine that law as they deem fit. EU law proper will meanwhile continue to develop in line with European decisions and principles so it’s very possible that legislation implemented across the EU prior to Brexit has one meaning in the UK and another in the EU.
Despite what will undoubtedly be an uncertain start to life after Brexit, things are likely to settle over time. There may not be any close legal analogy to a country leaving the European Union but one can take encouragement from the introduction, some 20 years ago, of adjudication as a new form of dispute resolution for construction contracts in the UK. It took time to reconcile the new procedure with existing legal precedent and stakeholders’ expectations but the jurisprudence has now become reasonably settled. The UK’s departure from the EU is of an altogether different size and magnitude and it is to be expected that the ramifications of such a major constitutional change will be felt for many years to come but in time, the law should settle down and legal certainty prevail.