Constitutional 8: EU Law Flashcards
What is assimilated law?
all AoP and secondary legislation enacted to implement EU law
What is Assimilated direct legislation?
EU legislation that was not originally passed in UK
What retained EU law has been repealed? Exception?
Assimilated domestic law
- Sch. 1, Part 1
Assimilated direct legislation
- Sch. 1, Part 2
EXCEPT
- if a UK minister or devolved minister
- saved it before 2023
- if devolved will only devolved ministers respective nation
Are treaty provisions that were retained for directly effect e EU law binding on UK?
Not anymore
What are the rules of supremacy for assimilated laws?
Retained Direct EU legislation is inferior to other sources of domestic law
Interpretation
Must be interpreted as far as possible and given effect in way that is compatible will all other legislation
Incompatible
- than any other other domestic legislation will take effect over it
EXCEPTION
- ministers can provide exception until June 2026
What is the exception of the supremacy of domestic law over assimilated direct legislation?
Minister can pass regulations providing for specific pieces of retained direct EU legislation to take priority over specific pieces of primary or secondary legislation
Only until 23rd June 2026
Are courts bound by CJEC case law?
Remember this does not apply to retained domestic case law
Yes if from before end of 2020 (up to 31 Dec 2020)
If passed after then persuasive but not binding
Exception
- CoA and Supreme Court
When can courts depart from retained EU case law?
CoA and Supreme Court having regard to:
- That decisions of a foreign court are not normally binding on domestic courts;
- Any changes of circumstances which are relevant to the assimilated EU case law;
- The extent to which the assimilated EU case law restricts the proper development of domestic law.
When can courts depart from retained domestic case law?
CoA and Supreme Court having regard to:
* The extent to which the assimilated domestic case law is determined or influenced by assimilated EU case law from which the court has departed or would depart.
* Any changes of circumstances which are relevant to the assimilated case law;
* The extent to which the assimilated case law restricts the proper development of
domestic law.
What can a court do if it is bound by assimilated case law but cannot depart?
- applies to lower courts
- applies to both assimilated EU and domestic case law
Can refer point of law to CoA or Supreme Court if
- court considered it of general public importance
When would compatibility reference be made to the supreme court?
- if the case law in question was made by supreme court
Who can make a compatibility reference?
The court
- on own volition
Parties
- apply to court of hearing
Law Officer (UK or devolved)
- only if case (and appeal) is over; and
- no reference was made
What is the time limit for a law officer to make a compatibly reference and who should make it?
made within 6 months of:
- last day appeal could have been made
- from date an appeal was finally dealt with
Law Officers
England
- Attorney General
Wales
- Attorney General
- Lord Advocate
- Counsel General
Scottland
- Advocate General
N. Ireland
- Advocate General
- Attorney General
What is the effect of law officer making compatibility reference?
Will not effect the relevant case as made after
What should courts do if they find incompatibility between assimilated direct legislation and domestic enactment?
If during proceedings
Should should make incompatibility order
applies no matter which has precedent
