Retained EU law and the UK constitution - Sources of retained EU law

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Overview

Brexit marked a significant shift in the UK’s legal framework. A key element of this transition was the introduction of retained EU law, essential for understanding the UK's legal system after Brexit. It allowed for a seamless continuation of laws, minimizing disruption.

The European Union (Withdrawal) Act 2018 (EUWA 2018) created the structure for retaining EU law, preserving EU legislation's legal effects while enabling future changes by the UK Parliament. This subject is vital for SQE1 FLK1 exam preparation, affecting areas like statutory interpretation and legal practice.

Sources and Categories of Retained EU Law

The European Union (Withdrawal) Act 2018: The Legal Backbone

The EUWA 2018 is key to integrating EU law into the UK post-Brexit. Important sections include:

  1. Section 2: Preserves EU-derived domestic legislation
  2. Section 3: Incorporates direct EU legislation
  3. Section 4: Maintains certain rights from EU law
  4. Section 5: Lays out exceptions to retention

EU-Derived Domestic Legislation

This category covers UK laws created to comply with EU directives, such as:

  1. Statutory instruments under Section 2(2) of the European Communities Act 1972 (ECA 1972)
  2. Primary laws fulfilling EU obligations
  3. Domestic laws related to the EU or EEA

Example: The Working Time Regulations 1998, implementing the EU Working Time Directive.

Direct EU Legislation

These EU legal acts applied directly in the UK without needing domestic laws, including:

  1. EU Regulations
  2. EU Decisions
  3. EU Tertiary Legislation

Only those active before "IP completion day" (11:00 pm on 31 December 2020) are retained.

Example: The General Data Protection Regulation (GDPR), now part of UK law as "UK GDPR."

Rights and Obligations under Section 2(1) ECA 1972

This includes rights and obligations recognized in UK law before IP completion day, like:

  1. Directly effective rights from EU Treaties
  2. General EU law principles
  3. Francovich damages (with some limitations)

Example: The right to equal pay for equal work from Article 157 of the Treaty on the Functioning of the European Union (TFEU).

Constitutional Impact and Interpretation

The Principle of Supremacy in the Post-Brexit Era

Supremacy has changed:

  1. Section 5(1) of the EUWA 2018 ends supremacy for new laws post-IP completion day.
  2. Section 5(2) keeps it for laws before that day.

This creates a new order:

  • New laws override retained EU law post-IP completion day
  • Retained EU law takes priority over older domestic laws

Example: A retained EU Regulation would override an older UK statute, but a new conflicting UK Act would take precedence.

Judicial Interpretation and the Role of CJEU Case Law

Section 6 addresses retained EU law interpretation:

  1. The UK Supreme Court and High Court of Justiciary aren't bound by retained EU case law.
  2. Lower courts remain bound.
  3. Courts assess whether to diverge from retained EU case law using their usual criteria.

UK courts can consider post-Brexit CJEU actions if relevant.

Example: In interpreting retained EU competition law, a UK court could view post-Brexit CJEU rulings as persuasive, not binding.

Practical Applications and Exam Relevance

Understanding retained EU law is vital for handling complex legal scenarios in the SQE1 FLK1 exam. Candidates might need to:

  1. Identify the correct category for a legal provision
  2. Ascertain the status of EU-derived rights post-Brexit
  3. Analyze conflicts between retained EU law and new UK legislation
  4. Evaluate CJEU decisions' relevance to retained EU law

Example Scenario: A UK company accused of competition law breaches spanning pre- and post-Brexit periods requiring navigation of retained EU law, new UK legislation, and recent CJEU judgments.

The Future of Retained EU Law: Transition and Change

The UK Government is addressing retained EU law's impact with:

  1. Review and Repeal: Reevaluating and potentially repealing retained laws to align with UK goals.
  2. Harmonization: Aligning retained law with UK laws to reduce inconsistencies.

Conclusion: Understanding Retained EU Law

Retained EU law remains crucial to understanding the UK's legal system post-Brexit. It bridges the UK's EU past with its present, ensuring continuity while posing challenges with new laws.

Key points:

  1. Retained EU law includes EU-derived domestic laws, direct EU legislation, and certain rights.
  2. Supremacy principles have shifted, altering the relationship with domestic laws.
  3. UK courts have flexibility in interpreting retained EU law, but lower courts follow existing case law.
  4. The future involves review, possible repeal, and harmonization efforts.

For SQE1 FLK1 candidates, mastering retained EU law, its constitutional impact, and practical application is essential for exam success and navigating the UK's evolving legal landscape.