The English Legal System - Retained EU Law (Chapter 11)

Question 1

When was IP completion day?
What does IP stand for?

Answer 1

31 December 2020
Implementation Period

Question 2

Date referendum EU

Answer 2

23 June 2016

Question 3

Result of EU referendum

Answer 3

52% in favor of leaving

Question 4

Article used to withdraw

Answer 4

Article 50(2) of the Treaty on the European Union

Question 5

What happened after withdrawal of EU was given to the EU on UK side?

Answer 5

Government agreed a Withdrawal Agreement with the EC, which was rejected by the UK Parliament in two subsequent votes in 2019, resulting in agreements between the EC and the UK government to extend the Art. 50 process

Question 6

There were two EU Withdrawal Acts: From 2018 and 2020 (Withdrawal Agreement Act). Why was it necessary to have two acts?

Answer 6

Upfront: The 2020 EUWAA is an amendment to the 2018 EUWA.

The 2018 EUWA came into force on 31 January 2020 (this is counter-intuitive), while the 2020 EUWA came into force on 23 January 2020, nine days before the UK left the EU.

The 2020 EUWAA saved the effect of the European Communities Act 1972 (ECA 1972) during the implementation period and formally ratified and incorporated the Withdrawal Agreement (bilateral treaty) into domestic law after the United Kingdom formally left the European Union.

The 2020 EUWAA implemented the provisions of the Withdrawal Agreement, which required EU laws to have domestic legal effect during the implementation period, despite the fact that the UK was no longer a Member State.

Question 7

What is a “knock-on effect”?

Answer 7

Dominoeffekt

Question 8

What are the three reasons why the UK had to retain UK law?

Answer 8

1) Secondary EU legislation (regulations, decisions, directives) would no longer have been effective since they have been dependent on the European Communities Act 1972
2) Secondary domestic legislation that was dependent on primary legislation (introduced through the European Communities Act 1972) would have no longer been effective
3) Private individuals would no longer have been able to assert their rights in domestic courts under the doctrine of direct effects

Question 9

What did the EUWA 2018 do?

Answer 9

1) It repealed the European Community Act 1972
2) It transformed EU law into domestic statutory law by taking a “screenshot” of the EU law on the day of the exit

Question 10

What is the UK-EU Withdrawal Agreement?

Answer 10

A bilateral treaty between the UK and the EU

Question 11

The 2020 EUWAA implemented the provisions of the Withdrawal Agreement, with what two steps did the act ensure a smooth transition of Brexit?

Answer 11

1) It provided authority to make secondary legislation, where appropriate, to incorporate the Withdrawal Agreement
2) It delayed statutory instruments amending deficiencies in retained EU laws that would otherwise have been applied on exit day

Question 12

The 2020 EUWAA, aside from the Withdrawal Agreement, implemented two other international agreements. Which?

Answer 12

EEA EFTA Separation Agreement
Swiss Citizens’ Rights Agreement

Question 13

What was the problem with the EU regarding parliamentary sovereignty?

Answer 13

The EU undermined the parliamentary sovereignty (e.g., decisions of the CJEU increasingly determined and codified sections of UK law)

Question 14

The 2020 EUWAA, aside from protecting rights of EEA, EFTA and Swiss citizens, also held provisions regarding Northern Ireland. To what act did the EUWAA make reference to? What rights were protected?

Answer 14

Relating to Northern Ireland Act 1998
The revisions relate to the subject of rights, safeguards and equality of opportunity contained in the Belfast Agreement 1998 (also known as the Good Friday Agreement)
It contains terms allowing access for Northern Ireland goods to the British market with added conditions to ensure existing agreements for North-South (of Ireland) co-operation can be varied

Question 15

What is the difference between exit day and IP completion day?

Answer 15

Exit day was on 31 January 2020, when EU law effectively was supposed to cease to have effect in the UK
IP completion day was introduced with 2020 EUWAA. It marked the end of the implementation period: 31 December 2020

Question 16

In regard to the EU law, what impact did IP completion day have on the UK?

Answer 16

Although the ECA was repealed with effect from 31 January 2020, the EUWAA 2020 introduced provisions into EUWA 2018 that most of the effects of the 1972 ECA would be retained until IP completion day. Effectively, “exit day” was replaced in the EUWA 2018 with “IP completion day”.

Question 17

Between exit day and IP completion day, how did EU law retain effect on the UK?

Answer 17

1) new statute or statutory instruments that gives legal effect to any international obligation to the UK still holds as a result of the implementation period
2) EU Regulation, Decision, or tertiary legislation, implemented after exit day but before IP completion day
3) EU Directive which may have direct effect, enacted prior to, or after, exit day, for which the effective date happens to be between exit day and IP completion day
4) new case law of the CJEU where a ruling has been issued after exit day but before IP completion day

Question 18

EUWA 2018 ensured that existing domestic legislation which gives effect to EU-derived domestic legislation remained in place. Did this apply to directly or indirectly effective EU law? What is the difference?

Answer 18

It applied to both directly and indirectly effective EU law

Directly effective EU law refers to provisions that can be relied upon by individuals before national courts without the need for national implementing measures. In other words, directly effective EU law can be invoked by individuals in their national courts without the need for their country to pass any additional laws.

Indirectly effective EU law, on the other hand, refers to provisions that require national implementing measures before they can be applied. In other words, indirectly effective EU law requires Member States to pass laws or take other measures to give effect to the EU law within their national legal systems.

Question 19

Why did the EUWA 2018 specifically mention which secondary legislation had to be “saved”?

Answer 19

Because secondary legislation based on the ECA 1972 was repealed with the EUWA 2018. With it, all secondary legislation based on the ECA 1972 would have been repealed as well unless specifically “saved” by the EUWA 2018.

Question 20

What are the three exceptions to savings and incorporation of EU law?

Answer 20

1) Supremacy of EU law was retained in regard to the interpretation of pre-IP completion day law. Retained EU law still takes precedence over pre-IP day completion day domestic legislation which it is in conflict with.
2) The Charter of Fundamental Rights. It was specifically excluded from EU retained law, S.5(5) EUWA emphasizes that any fundamental rights or principles which exist, irrespective of the Charter or any EU law that is retained, will continue to be interpreted according to the underlying principles and rights.
3) Francovich damages: Proceedings commenced two years prior to IP completion day will be enforceable.

Question 21

What are “Francovich damages”?

Answer 21

Francovich damages refer to a type of compensation that individuals or companies may be entitled to receive under EU law when a Member State has failed to implement EU law correctly, or when they have implemented it in a way that is inconsistent with the requirements of EU law.

The concept of Francovich damages arises from a landmark judgment of the European Court of Justice (ECJ) in the case of Francovich v Italy (1991). In that case, the ECJ held that individuals who have suffered damage as a result of a Member State’s failure to implement EU law correctly may be entitled to compensation from the Member State.

Question 22

Did UK courts and tribunals still have to consider decisions of the CJEU post IP-completion day?

Answer 22

Section 5(5) of the European Union (Withdrawal Agreement) Act 2020 (EUWA) provides for the interpretation of retained EU law by UK courts and tribunals after the end of the transition period.

Specifically, it states that UK courts and tribunals may have regard to any relevant decisions of the European Court of Justice (ECJ) that were handed down after the end of the transition period, but only if the UK court or tribunal considers it appropriate to do so.

This means that UK courts and tribunals are not bound to follow decisions of the ECJ that were handed down after the end of the transition period, but they may take them into account when interpreting retained EU law. The ultimate authority for interpreting UK law, including retained EU law, lies with the UK courts and tribunals.

Section 5(5) of the EUWA also provides that UK courts and tribunals are not bound by any principles laid down by the ECJ after the end of the transition period, and that they may depart from any retained EU case law if they consider it appropriate to do so. This gives UK courts and tribunals greater flexibility in interpreting retained EU law, and allows them to develop their own jurisprudence in this area.

Question 23

Could domestic courts still refer to the CJEU on IP completion day?

Answer 23

No.

Question 24

Although a court may have to regard to CJEU decisions after IP completion day, it cannot have regard to such an extent it considers itself bound by them. What does that mean?

Answer 24

This statement refers to the principle of the UK’s sovereignty in making its own laws after leaving the European Union, as set out in the European Union (Withdrawal) Act 2018.

The statement means that while UK courts may consider decisions made by the Court of Justice of the European Union (CJEU) after the end of the Brexit transition period (known as “IP completion day”), they are not required to follow them blindly. Instead, UK courts must interpret and apply UK law independently and in accordance with their own legal principles and precedents.

This means that while CJEU decisions may be persuasive or informative, they are not binding on UK courts. UK courts must take into account any relevant CJEU decisions, but they may depart from them if they consider it appropriate to do so.

This approach reflects the UK’s desire to maintain its independence in making and interpreting its own laws after Brexit, while recognizing the value of considering the judgments of other courts when appropriate.

Question 25

What are the EUWA (Relevant Court) (Retained EU Case Law) Regulations 2020?

Answer 25

The EUWA (Relevant Court) (Retained EU Case Law) Regulations 2020 is a UK statutory instrument that came into force on December 31, 2020, as part of the UK’s post-Brexit legal framework.

The purpose of the regulations is to set out which UK courts are considered “relevant courts” for the purpose of retaining and using certain EU case law after the end of the Brexit transition period.

Specifically, the regulations define the “relevant courts” as the UK Supreme Court, the Court of Appeal of England and Wales, the High Court of England and Wales, the Court of Appeal of Northern Ireland, the High Court of Northern Ireland, and the Inner House of the Court of Session in Scotland. These courts are authorized to depart from retained EU case law under certain circumstances.

The regulations also provide guidance on how relevant courts should interpret and apply retained EU case law, taking into account relevant UK case law and any relevant decision of the EU court made after the end of the Brexit transition period.

Overall, the regulations aim to provide clarity on how retained EU case law should be used in the UK’s post-Brexit legal system, while maintaining the UK’s independence in making and interpreting its own laws.

Question 26

Retained EU law that is not subsequently amended by domestic legislation is, according to EUWA 2018, to be interpreted by domestic courts in line with relevant pre-IP completion day CJEU precedent and general EU principles. How is it for retained EU Law modified by domestic legislation?

Answer 26

Interpretation only where it is in line with the intentions of the modification.

Question 27

Section 8 of the EUWA 2018 is important for what reason?
What is a limitation of Section 8?

Answer 27

It gives Minister of the Crown the power by regulations to make provisions to prevent, remedy or mitigate any failure of retained EU law to operate effectively or any other deficiency in retained EU law.
It may not repeal, amend or revoke the Human Rights Act 1998 or any subordinate legislation.

Question 28

EUWA 2018 defines “retained direct principal EU legislation” and “retained direct minor EU legislation”. What’s the difference?

Answer 28

The former is defined as any EU regulation which is converted into UK law on or after IP completion day, which is not EU tertiary legislation.
The latter is EU tertiary legislation and EU decisions (regulations, directives, decisions, recommendations, and opinions).

Question 29

What is a sunset clause?

Answer 29

A sunset clause is a provision in a law or regulation that sets an expiration date or a specific termination event for the law or regulation. In other words, it specifies that the law or regulation will automatically cease to have effect after a certain period of time or under certain conditions.

Question 30

What are considered “Henry VIII powers”?

Answer 30

In UK law, “Henry VIII powers” refer to a type of legislative power that allows the government to modify or repeal primary legislation (Acts of Parliament) without the need for full parliamentary scrutiny and debate. These powers are named after King Henry VIII, who famously used his royal prerogative to bypass Parliament and issue proclamations that had the force of law.

In modern times, Henry VIII powers are typically included in Acts of Parliament as “delegated legislation” powers, which allow ministers to make secondary legislation (e.g. regulations or orders) that can amend or repeal primary legislation. These powers are often used to give the government flexibility to adapt the law to changing circumstances or to implement technical or administrative changes without the need for a new Act of Parliament.

However, Henry VIII powers are controversial, as they potentially allow the government to bypass parliamentary scrutiny and undermine the principle of separation of powers between the executive and legislative branches of government. Critics argue that they can be used to undermine fundamental rights and protections, and that they should be subject to strict limitations and safeguards.

Overall, Henry VIII powers are a contentious issue in UK law, and their use and scope are subject to ongoing debate and scrutiny.

Question 31

Why are Henry VIII powers related to EU Withdrawal Act?

Answer 31

Henry VIII powers have been particularly controversial in the context of the European Union (EU) Withdrawal Act.

The EU Withdrawal Act contains provisions that give the UK government the power to make secondary legislation, using delegated powers, to make necessary amendments to EU law as it is transposed into UK law. These delegated powers include a range of Henry VIII powers, which allow the government to make changes to primary legislation (Acts of Parliament) without full parliamentary scrutiny and debate.

These powers have been controversial because they give the government significant scope to amend, repeal or replace primary legislation, without adequate parliamentary scrutiny and oversight. Critics argue that this undermines the principle of parliamentary sovereignty, which holds that Parliament should be the ultimate authority in making and amending UK law.

In response to these concerns, the EU Withdrawal Act includes safeguards to ensure that Henry VIII powers are used appropriately and proportionately. These safeguards include requirements for parliamentary approval of any changes to primary legislation, and for the publication and consultation on any proposed use of these powers.

Question 32

The Explanatory Notes to the EUWA 2018 specified something important regarding the “Henry VIII powers”. What was it?

Answer 32

A law is not deficient merely because a minister considers the EU law was flawed before IP completion day.

Question 33

One agreement and act between the UK and EU after Brexit

Answer 33

Trade and Cooperation Agreement (24 December 2020)
European Union Future Relationship Act 2020