Unit 7 Flashcards
(33 cards)
What was the general impact of EU law on the UK legal system before Brexit?
Profoundly influenced large parts of English law (commercial, employment, environmental, consumer protection, etc.). EU law had supremacy over conflicting UK law.
What was the “transition period” and when did it end?
Lasted until 31 December 2020. During this time, EU law remained in full force in the UK, ensuring legal continuity.
Purpose of Retained EU Law & Withdrawal Agreement Act 2020
EUWA 2018: Aimed to provide legal continuity post-Brexit by creating “retained EU law.” This preserved EU law as it existed on “IP completion day” (end of transition period) as a new category of English law, preventing “massive gaps” in the statute book.
Withdrawal Agreement Act 2020: Enacted by Parliament to implement the Withdrawal Agreement (an international treaty) into UK domestic law.
The Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023)
To amend retained EU law more easily, remove its “special features,” and “reclaim sovereignty of Parliament” by ending the special status of retained EU law and restoring primacy to Acts of Parliament.
Made significant changes to the status, interpretation, and application of retained EU law with effect from 1 January 2024
What is the Trade and Cooperation Agreement (TCA)?
Governs the post-Brexit relationship between UK and EU. A free trade agreement providing for quota and tariff-free trade in goods, but with more barriers than pre-Brexit. Covers services, competition, transport, etc.
Explain the “sweeping-up” mechanism of s.29 EU(FR)A 2020.
S.29 “Sweeping-up” Mechanism: An unusual provision that automatically deems any modification required in existing UK domestic law (statute or common law) to implement the TCA’s provisions to have been made. If a UK statute existing when EU(FR)A 2020 came into force doesn’t comply with the TCA, it is automatically amended.
What is “IP completion day”?
IP Completion Day: Defined as 11.00 pm on 31 December 2020 (end of the Brexit transition period).
What is Retained EU Law/Assimilated Law? (Snapshot
“Snapshot” Concept: Retained EU law was effectively a snapshot of EU law that was in force in the UK immediately before IP completion day. This law continued in force despite the UK’s exit from the EU.
Categories of Assimilated Law: EU-Derived Domestic Legislation
Definition (EUWA 2018, s.2): Primarily secondary legislation (e.g., regulations) enacted by the UK Government under ECA 1972 to implement EU obligations (e.g., EU Directives). Also includes some Acts of Parliament.
Preservation: Preserved to ensure continuity and prevent gaps in UK law and converted into assimilated law.
What is “direct EU legislation”?
EU legislation that applied directly in the UK legal system without the need for implementing UK legislation immediately before IP completion day.
EUWA 2018, s.3 converted this into domestic legislation (where “operative” on IP completion day). It was the English language text that was converted. Regulation (EC) 261/2004 (air passenger rights) became direct assimilated legislation, ensuring passengers retained rights.
What did EUWA 2018, s.4(1) preserve?
Preserved certain rights, powers, liabilities, obligations, restrictions, remedies, and procedures available in UK law immediately before IP completion day under ECA 1972, aiming to catch any remaining EU rights/obligations not in ss.2 or 3.
Directly effective rights contained within EU treaties (e.g., Article 157 TFEU – equal pay for equal work)
Categories of Assimilated Law: Repeal of s.4 EUWA 2018 by REULA 2023
Individuals (including businesses) can no longer rely on directly effective rights arising under Treaty articles or directives before UK courts (unless codified).
What was the status of “EU-derived domestic legislation” (EUWA 2018 s.2) before and after REULA 2023?
Before REULA 2023: Had the same status as it had pre-IP completion day (either as primary or secondary legislation).
After REULA 2023: Its status generally remains the same. It continues to be classed as primary or secondary legislation, but it is now labelled “assimilated law.”
Are UK courts still bound by CJEU judgments after IP completion day?
CJEU Judgments Post-IP Completion Day: UK courts and tribunals are no longer bound by CJEU judgments handed down after IP completion day, though they may have persuasive effect (EUWA 2018, s.6(1)-(2)).
What were “retained general principles of EU law” (before REULA 2023)?
What was their function?
Abolition (REULA 2023, s.4): Abolished from the end of 2023. They have not become assimilated law.
Consequence of Abolition: UK courts can no longer use general principles to interpret assimilated law (though still relevant for Withdrawal Agreement application).
Exclusion of State Liability (Francovich Damages)
EUWA 2018 Treatment: Excludes the principle of state liability from UK law (i.e., individuals cannot bring new claims for Francovich damages post-IP completion day)
Correcting ‘Deficiencies’ in Retained EU Law
Granted temporary powers to UK Government ministers (and devolved administrations for devolved matters) to make secondary legislation to correct “deficiencies” in retained EU law.
: The power expired two years from IP completion day (31 December 2022). However, REULA 2023 gives extensive new powers to amend/revoke retained EU law.
Supremacy of Assimilated Law (Post-REULA 2023 - Abolition)
What did s.3 REULA 2023 do to the supremacy of retained EU law, and when?
Section 3 of REULA 2023 abolished the supremacy of retained EU law from 31 December 2023. This ends the supremacy of EU law in relation to any enactment or rule of law, whenever passed.
Must, “so far as possible,” be read and given effect in a way compatible with all domestic enactments.
What happened to the “principle of consistent interpretation” (Marleasing principle) for domestic legislation?
EULA 2023 also removes the principle of consistent interpretation (Marleasing principle) in relation to all domestic legislation. UK courts are no longer required to interpret UK regulations consistently with EU Directives, though they may still consider Directives as extrinsic aids.
How are challenges to EU-derived domestic legislation treated?
EU-derived Domestic Legislation (EUWA 2018 s.2):
If it’s primary legislation (an Act of Parliament), it’s treated like any other Act.
If it’s secondary legislation, it can be challenged on normal public law grounds (e.g., ultra vires, irrationality).
What key guidance did Lipton & Anor v BA City Flyer Ltd [2021] provide for applying retained EU law? (List 3-4 points).
Determine status: Was it operative pre-IP completion day? (e.g., Regulation (EC) 261/2004).
Consider supremacy: Did it take precedence over pre-IP completion day domestic law? (Yes, s.5(2) EUWA 2018).
Check for amendments: Has it been amended by domestic UK legislation?
Purposive construction: Retained EU law should be given a purposive construction.
CJEU case law: Take into account pre-IP completion day CJEU case law (Court of Appeal could depart but didn’t need to).
General principles: Take into account pre-IP completion day general principles of EU law (though not relevant in Lipton).
TCA/EU(FR)A 2020: Analyse if retained EU law was amended/superseded by TCA/EU(FR)A 2020.
What is “assimilated domestic case law”?
Which courts have the power to depart from it?
Is it likely for the Court of Appeal to depart from a Supreme Court judgment based on this?
Assimilated Domestic Case Law: Judgments handed down by UK courts before IP completion day relating to EU law provisions.
Power to Depart: The Court of Appeal and equivalent courts have the same power to depart from assimilated domestic case law as from assimilated EU case law.
Supreme Court Judgments: In theory, the Court of Appeal could depart from a Supreme Court judgment in this context. However, this has not happened in practice and is considered an unlikely eventuality due to hierarchy of precedent.
What is the general ambition of REULA 2023 regarding ministerial powers?
What are the two main categories of powers given to ministers (ss.11-16 REULA 2023)?
Ambition: To give ministers extensive powers for regulatory reform and to reduce the impact of EU law in the UK’s legal system.
Two Main Categories of Powers:
Power to restate or reproduce retained EU law/assimilated law.
Power to revoke (or replace) retained EU law/assimilated law.
The Withdrawal Agreement - Main Provisions
Entry into Force: 1 February 2020. It is legally binding in international law.
Political Declaration: Not legally binding, but set framework for future EU-UK partnership negotiations.
Key Issues Covered:
Citizens’ Rights: Protects rights of UK citizens in EU and EU citizens in UK (and family members) at end of transition period to live/work in host state (e.g., EU Settlement Scheme in UK for EU citizens).
