Saturday, 30 January 2021

EU law and Domestic law: the on-going relationship (2) - Retained EU Law

The first post in this series (28 January) set the scene for an overview of the routes - (or some of the routes) - via which EU law will continue to have influence within the UK's legal systems.

Just as EU law flowed into UK legal systems because of the "conduits" created by the European Communities Act 1972, EU continues to have influence because of a number of Acts of Parliament. The Acts have created new conduits!

The Acts and the Agreements:  

A] European Union (Withdrawal) Act 2018  - Retention of existing EU law

B] European Union (Withdrawal Agreement) Act 2020 - Separation Agreements Law - this Act implemented in domestic law the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.  The Act does much of its work by inserting additional sections into the 2018 Act.

The Withdrawal Agreement Act section 39 acted defines the term "IP Completion Day" as 31 December 2020 at 11pm. (The UK left the EU on 31 January 2020 but then entered into the transition or, as the UK preferred to say, implementation period which lasted until IP completion day).

C] European Union (Future Relationship) Act 2020 - Relationship Agreements Law - the Act implemented in domestic law the Trade and Cooperation Agreement (TCA), the  Security Procedures for Exchanging and Protecting Classified Information Agreement (SOIA) and the Nuclear Cooperation Agreement (NCA).  The Act also provides for implementation of "supplementing agreements" which are future bilateral agreements between the UK and EU.

The three categories created by the three Acts - Retention of existing EU law, Separation Agreements Law, Relationship Agreements Law - are individually complex and there is overlap between some categories. 

What follows is an overview of the first category: Retained EU law. Further posts will consider Separation Agreements Law and Relationship Agreements Law.

*** Overview - Retained EU Law ***

Repeal of the European Communities Act 1972:

European Union (Withdrawal) Act 2018 - (link is to latest available)

Section 1 of the 2018 Act repealed the European Communities Act 1972 but it was then necessary to ensure that the UK's domestic legal systems would continue to operate effectively after Brexit. This was achieved by introducing the concept of Retained EU Law.

The term "Retained EU Law":

The categories of "Retained EU Law" and the term "retained EU law" are defined in section 6(7) -

"retained EU law” means anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or [section 6(3) or 6(6)] (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)"

Note: From section 6(7) it appears that there are 5 categories of retained EU law. Some writers have preferred to say that there are three - e.g. David Thorneloe (Pinsent Masons) - Retained EU law in the UK (5 January 2021). For present purposes I have followed the definition in section 6(7) which includes retained case law and retained EU case law.

Section 2 - Saving for EU-derived domestic legislation:

Section 2 provides - (1) EU-derived domestic legislation, as it has effect in domestic law immediately before IP completion day, continues to have effect in domestic law on and after IP completion day.

Section 2(2) defines "EU-derived domestic legislation. It is a broad definition and, for example, includes any enactment made under the European Communities Act 1972 section 2(2) - e.g. the Working Time Regulations 1998.

Section 2(3) makes section 2 subject to section 5 and Schedule 1. Section 5 is headed "Exceptions to savings and incorporation" and Schedule 1 headed "Further provision about exceptions to savings and incorporation." Section 5 is considered below.

Section 3 -Incorporation of direct EU legislation:

Section 3(1) - Direct EU legislation, so far as operative immediately before IP completion day, forms part of domestic law on and after IP completion day.

Section 3(2) defines "Direct EU legislation" and includes any EU regulation, EU decision or EU tertiary legislation, as it has effect in EU law immediately before IP completion day but there are exceptions. Please read the section in full.

Section 3(5) makes section 3 subject to subject to section 5 and Schedule 1

Section 4 - Saving for rights etc. under section 2(1) of the ECA:

Section 4(1) - Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP completion day - (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and (b) are enforced, allowed and followed accordingly, continue on and after IP compleition day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).  Note the similarity of wording of between section 4(1) and the the ECA 1972 section 2(1).

Section 4(3) makes section 4 subject to  section 5 and Schedule 1

Section 4 ensures that any remaining EU rights and obligations not falling with sections 2 and 3 will continue to be recognised and available in domestic law.

Section 6 - Interpretation of retained EU law:

Section 6 is concerned with interpretation of retained EU law and, in section 6(3) we find "retained case law" and "retained EU case law."

Section 6(3) states - "Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it -

(a) in accordance with any retained case law and any retained general principles of EU law, and

(b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences.

The terms - Retained case law and Retained General Principles of EU Law. - are defined in section 6(7). 

Section 6(3) has to be read together with section 6(6) - "Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after IP compleition day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications."

Section 5 - Exceptions to savings and incorporation:

Section 5

(1) The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after IP completion day.

(2) Accordingly, the principle of the supremacy of EU law continues to apply on or after IP completion day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before IP compleition day.

(3) Subsection (1) does not prevent the principle of the supremacy of EU law from applying to a modification made on or after IP compleition day of any enactment or rule of law passed or made before IP completion day if the application of the principle is consistent with the intention of the modification.

(4) The Charter of Fundamental Rights is not part of domestic law on or after IP completion day.

(5) Subsection (4) does not affect the retention in domestic law on or after IP completion day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).

Note: During the UK's membership of the EU, the Charter applied to those areas of national law coming within the (wide) scope of EU law.  (This Parliamentary Report is worth reading. Also see Equality and Human Rightrs Commission Brexit and the EU Charter of Fundamental Rights: our concerns and Jonathan Cooper (Barrister, Doughty Street) The fate of the Charter of Fundamental Rights in UK Law after Brexit is sealed). 

Schedule 1 (which makes further provision about exceptions to savings and incorporation) has effect.  Schedule 1 - (please read it in full) - provides that:

  • There is no right in domestic law on or after IP compleition day to challenge any retained EU law on the basis that, immediately before IP completion day, an EU instrument was invalid.
  • No general principle of EU law is part of domestic law on or after IP completion day if it was not recognised as a general principle of EU law by the European Court in a case decided before IP completion day (whether or not as an essential part of the decision in the case).
  • There is no right of action in domestic law on or after IP completion day based on a failure to comply with any of the general principles of EU law.
  • No court or tribunal or other public authority may, on or after IP completion day - (a) disapply or quash any enactment or other rule of law, or (b) quash any conduct or otherwise decide that it is unlawful, because it is incompatible with any of the general principles of EU law.
  • There is no right in domestic law on or after IP completion day to damages in accordance with the rule in Francovich.

Other points:

The EU(FR)A made amendments to "retained EU law" and, sometimes, primary legislation amends secondary legislation. This raises the question of whether secondary legislation amended by primary legislation is open to challenge by judicial review. This is not considered further here.

There is also the question of "hierarchy" - i.e. what is the relationship between retained EU law, relevant separation agreements law, law under the EU(FR)A, and ordinary domestic law.  This may present future difficulties but, for now, is not considered further.

Posts in this series:

EU law and Domestic law: the on-going relationship (1)

EU law and Domestic law: the on-going relationship (2) - Retained EU Law 

EU law and Domestic law: the on-going relationship (3) - Relevant Separation Agreement Law

EU law and Domestic law: the on-going relationship (4) - Future relationship

Other reading:

Pavlos Eleftheriadis (Professor of Public Law, Mansfield College) – Eleven types of post-Brexit EU law

EU Law Analysis blog - Professor Steve Peers

Monckton Chambers - EU Relations Law and the series by barrister Jack Williams - EU Relations Law - Relevant Relationship Agreement Law: a guide for the perplexed

House of Commons Library 30 July 2019 - The status of retained EU law

30 January 2021.

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