Retained EU law and the UK constitution - Modification and withdrawal of retained EU law

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Overview

The UK's exit from the EU has ushered in a new era, demanding a thorough understanding of the relationship between retained EU law and the UK constitution. This subject is essential for SQE1 FLK1 exam candidates, as it touches on key constitutional principles, legislative processes, and the shifting nature of UK sovereignty post-Brexit. This article offers an in-depth look at retained EU law, its constitutional effects, and how it can be changed or withdrawn.

Historical Context: EU Law and UK Sovereignty

Before Brexit, EU law had a unique place in the UK legal system. The European Communities Act 1972 (ECA 1972) allowed EU law to take precedence:

  • Direct Effect: EU regulations applied in the UK without domestic legislation.
  • Indirect Effect: EU directives needed UK legislation but maintained priority.
  • Supremacy: EU law overruled conflicting UK law, as seen in cases like R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603.

This setup clashed with A.V. Dicey's doctrine of parliamentary sovereignty, which holds that Parliament can make or unmake any law without being overridden.

The European Union (Withdrawal) Act 2018: Reshaping UK Law

The European Union (Withdrawal) Act 2018 (EUWA 2018) marked a turning point in UK constitutional history:

  1. It repealed the ECA 1972, aiming to restore parliamentary sovereignty.
  2. It introduced "retained EU law" for legal continuity.
  3. It set new principles for the status and interpretation of retained law.

The EUWA 2018 acted as a transitional tool to incorporate EU law into the UK's legal framework, ensuring stability.

Retained EU Law

Retained EU law includes:

  1. EU-derived domestic legislation: UK laws implementing EU directives.
  2. Direct EU legislation: EU regulations applicable in the UK before exit day.
  3. Retained EU rights, etc.: Rights and obligations that were part of UK law under section 2(1) of the ECA 1972.

The EUWA 2018 maintains these laws as they were on "exit day" (31 December 2020), with specified exceptions and changes.

Example: Environmental Regulations

Consider REACH—post-Brexit, it became UK REACH, maintaining its core but allowing potential differences over time.

Modification and Withdrawal

The EUWA 2018 outlines how retained EU law can be adjusted or removed:

Primary Legislation

Parliament can amend or repeal retained EU law through new Acts, following traditional procedures including debate and scrutiny.

Secondary Legislation

Section 8 of the EUWA 2018 gives ministers broad authority to prevent or fix issues with retained EU law:

  • Allows amending primary legislation via secondary legislation.
  • Includes limitations, like a sunset clause.
  • Parliamentary scrutiny depends on the changes proposed.

Example: Fisheries Act 2020

The Fisheries Act 2020 illustrates how primary legislation can alter retained EU law, replacing the EU's Common Fisheries Policy with a UK approach.

Constitutional Safeguards and Challenges

The EUWA 2018 includes safeguards to protect legal stability and fundamental rights:

Interpretative Provisions

Section 6 of the EUWA 2018 guides how courts interpret retained EU law:

  • UK courts are not bound by post-exit CJEU decisions but may consider them relevant.
  • Pre-exit CJEU case law remains binding, subject to the Supreme Court's discretion.

Fundamental Rights

Schedule 1 of the EUWA 2018 states that while most of the EU Charter of Fundamental Rights is no longer domestic law, fundamental rights are still retained.

Parliamentary Sovereignty and Rule of Law

The balance between sovereignty and law remains significant, particularly given the extensive ministerial powers:

  • The EUWA 2018 raises questions about power distribution between government branches.
  • Courts' roles in interpreting retained law continue to influence sovereignty perceptions.

Impact Across Sectors

Changes to retained EU law affect various sectors:

Financial Services

The Financial Services Act 2021 shows sector-specific legislation can modify retained EU law:

  • Empowers UK regulators to adopt UK-specific rules in place of EU regulations, balancing domestic priorities and international competitiveness.

Data Protection

UK GDPR, a version of EU GDPR, reflects possible gradual changes:

  • While similar to EU standards, the UK can alter these rules, balancing adequacy agreements with other regions.

Employment Law

Many UK employment rights stem from EU directives, now retained:

  • The government aims to preserve or improve rights post-Brexit.
  • The ability to alter these through statutory instruments raises concerns about protection erosion.

Challenges and Controversies

Retained EU law and the UK constitution have sparked debate and legal challenges:

  • Critics argue the EUWA's provisions could undermine parliamentary sovereignty by allowing significant executive power without sufficient scrutiny.
  • Legal challenges based on the principle of effet utile remain contentious, questioning whether UK courts should apply retained EU law aligned with EU principles post-Brexit.

The Brexit Freedoms Bill aims to simplify retained EU law changes but faces criticism for potentially weakening the rule of law and international commitments.

Conclusion

Retained EU law's incorporation into UK law marks a major constitutional transition, challenging conventional views on sovereignty and introducing complex legal change processes. For SQE1 FLK1 exam candidates, understanding this topic is essential for navigating the legal terrain post-Brexit.

Key points to remember:

  1. The balance between sovereignty and EU law's legacy.
  2. The EUWA 2018's modification tools, including the debated "Henry VIII powers."
  3. Judicial roles in interpreting retained law and potential divergence from EU principles.
  4. Sector-specific changes balancing domestic aims and international obligations.
  5. Ongoing debates and challenges involving modification and withdrawal.