10. Place of the EU in UK Constitution

Question 1

What is a Regulation?

Answer 1

Automatically binding secondary legislation from the EU

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Question 2

What is a Directive?

Answer 2

Secondary legislation which is binding only with respect to the result to be achieved, meaning that member states need to implement the requirements under domestic law

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Question 3

What is the principle of Supremacy of EU law?

Answer 3

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

Question 4

What can EU citizens do under the principle of direct effect?

Answer 4

Rely on EU law in their domestic courts, without the need to rely on domestic law

Question 5

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

Answer 5

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 6

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

Answer 6

European Communities Act 1972

Question 7

How did the ECA 1972 make EU law supreme?

Answer 7

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

Question 8

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

Answer 8

31 December 2020

Question 9

What is retained EU law?

Answer 9

Under the European Union (Withdrawal) Act 2018, a snapshot of all EU law that was part of the UK legal system at the end of the transition period

Question 10

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

Answer 10

Legislation implementing EU directives 🫵 which is preserved in UK law

Question 11

What is direct EU legislation under the 2018 Act?

Answer 11

EU regulations that were automatically converted into UK law

Question 12

What is directly effective EU law under the 2018 Act?

Answer 12

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

Question 13

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

Answer 13

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.

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

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Question 14

What is the supremacy of the Withdrawal Agreement?

Answer 14

Any UK law that is inconsistent or incompatible with the Withdrawal Agreement will be disapplied in favour of the Withdrawal Agreement

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Question 15

Does the Withdrawal Agreement have direct effect?

Answer 15

To the extent it is clear, precise and unconditional

Question 16

Are UK courts bound by any principles or decisions of the CJEU after the end of the transition period?

Answer 16

Other than with respect to the Withdrawal Agreement, no

Question 17

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

Answer 17

They will consider them as persuasive precedent

Question 18

What is retained case law?

Answer 18

Cases decided before the end of the transition period, and which relate to retained EU law

Question 19

What are the two categories of retained case law?

Answer 19

1. Retained EU case law
2. Retained domestic case law

Question 20

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

Answer 20

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 21

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

Answer 21

They can amend or repeal it

Question 22

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 22

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 23

What five things does the power to amend under the 2018 Act extend to?

Answer 23

1. Redundant EU law or law with no practical application to the UK
2. Law conferring positions on EU institutions that are no longer relevant to the UK
3. Making reciprocal arrangements between UK and EU
4. Amending provisions that are dependent on the UK’s membership in the EU
5. Amending references to the EU which are no longer appropriate

Question 24

What five things does power to amend/repeal under the 2018 Act not extend to?

Answer 24

1. Imposing or increasing taxes
2. Making retrospective provisions
3. Creating criminal offences
4. Creating a new public authority
5. Amending/repealing HRA or any of the Acts concerning devolved nations/governments

Question 25

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

Answer 25

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

Question 26

For measures adopted under the 2018 Act, when did the power to make regulations end, and what is the time period for which they will be in effect?

Answer 26

End of 2022, and measures will last for five years from when they enter force