Brexit and the EU

How did EU membership affect parliamentary sovereignty

• EU institutions could create laws that bound the UK and override any UK law (primacy of EU laws)

• courts could also strike down acts of parliaments if they violated EU law

european council

the meeting of heads of government (Prime ministers)

political rather than legal

the council of ministers

the main legislative body, any law passed by the EU must be approved by the council

the commission

the main executive body and the only institution which can propose laws, implements most of the programmes and takes member states to court if they don't fulfil their obligations

the court of justice of the EU

the supreme court of the EU, has a judge from every member state

EU parliament

• Has a veto that can propose amendments in about 50% of the areas that the EU works in

• Has the right to be consulted and can fire the commission

• Elected directly by European voters

direct effect

EU law can be enforced by national judges in national courts

when can a treaty provision have direct effect?

Van Gen en Loos - so long as they are:

1. unconditional

2. set out an obligation which is precise

example of a treaty that would have direct effect

Treaty on the Functioning of the European Union Article 30 - ban on custom duties on goods

Van Gend en Loos v Nederlandse Administratie der Belastingen 1963

The Court of Justice held that the treaty should be treated as a new legal order which gives rights to individuals, and it is up to national courts to enforce these rights

Costa v ENEL 1964

held that EU law has primacy over national law — when there is a conflict, national law must give way to EU law, even if the national law was created after the EU law

Internationale Handelgesellschaft 1970

held that EU law takes primacy over all forms of national law, even constitutional norms

However, the Courts of Justice of the EU will interpret EU law in a way that takes into account the constitution

Amminstrazione delle Fianze dello Stato v Simmenthal 1978

held that any national court is empowered to set aside national law that conflicts with EU law, even if, under national law, the court lacks the power to strike down legislation

European Communities Act 1972 s2(1)

directly applicable Community law is to be recognised and enforced in law in the UK

European Communities Act 1972 s2(4)

Any future acts passed which contrast EU law will be set aside — this conflicts with parliamentary sovereignty by binding future parliaments

European Communities Act 1972 s3(1)

The British courts will be bound to follow the ECJ when interpreting EU law

the role of the courts in EU law

• interpret statutes in a way that reconciles with EU law

• If there is a clash between parliament and EU law, apply EU law

• change remedies to be compatible with EU law

R v Secretary of State for Transport ex parte Factortame No 1 1990

The Merchant Shipping Act 1988 provided that any ships fishing in UK waters must have a certain percentage of British crew and ownership, this was against EU law. It was held that the UK is required to create an injunction which restrains the parliament as a part of the EU law

The UK has to set aside the 1988 Act to give way to the EU law

HWR Wade

recognising the primacy of European law and setting aside Acts of Parliament that conflict with it amounts to a "legal revolution"

Thoburn v Sunderland CC 2003

parliament could legislate against EU law if it explicitly states that it intends to

Marling Case C-106/89 1990

held that all national law had to be interpreted in the light of the objectives of EU law

All courts have the right to set aside national legislation for EU law

The remedies the UK courts could give were also changed as in the EU law, there is a constitutional principle that effective protection and remedies must be provided

Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs 2017

acts of parliament (diplomatic immunity act) could be set aside to provide an effective remedy when EU rights are violated

R (UNISON) v The Lord Chancellor 2017

The difficult access to courts was contrary to the EU right of effective remedy and would, therefore, be set aside by the courts

R (on the application of HS2 Action Alliance Limited) (Apellant) v The Secretary of State for Transport (Respondents) [2014]

There was no clash between EU law and UK on the facts, but if there was, the courts would be forced to decide which fundamental constitutional principle to prioritise

Brexit

in 2016 UK voters voted by 52% to leave the EU

What did Miller I mean for Brexit

Article 50 had to be triggered, and notification sent to member states that the UK wants to leave the EU

The UK then has a 2-year period to reach an agreement; if at the end of the period there is no agreement, the UK would have to leave with no deal

The Withdrawal Agreement

1. Guaranteed right of EU citizens to live in the UK and UK citizens to live in the EU

2. A transition period lasting from 31 January 2020 to 31 December 2020, during which the UK remained bound by EU law.

3. Disputes in relation to the meaning of the agreement were to be adjudicated upon by a joint panel, but any issues in relation to the interpretation of EU law would be decided by the European Court of Justice

Northern Ireland Protocol

The Good Friday agreement meant there were no physical borders between North Ireland and Ireland, if the UK left the EU, North Ireland would have to maintain EU standards of goods as there was no border to check the goods crossing between NI and I

Windsor Framework

The Windsor Framework says the UK must protect rights promised in the Good Friday Agreement, which are partly based on EU law.

So, even after Brexit, some EU-related human rights laws still apply in Northern Ireland

Dillon and Others v Secretary of State for Northern Ireland 2024

UK legislation for amnesty was contrary to the Windsor Framework with Northern Ireland and the EU, therefore, it had to be disapplied - even after leaving the EU, the courts can disapply laws that conflict

Trade and Co-operation Agreement

1. tariff-free access to markets but no mutual recognition of each other's product standards

2. If one side imposes unfair tariffs, the other can place retaliatory ones

3. goods imported from elsewhere cannot be exported to the EU tariff-free

4. service providers must comply with rules of host state

The European Union (Withdrawal Agreement) Act 2020

gave legal force to the Withdrawal Agreement reached by the UK and EU (including the Northern Ireland Protocol) in late 2019.

The European Union (Future Relationships) Act 2020

gave legal force to the Trade and Co-operation Agreement reached by the EU and UK in late 2020.

The Retained EU law (Revocation and Reform) Act 2023

changes the status of the retained EU law established in the 2018 European Union (Withdrawal) Act.

which laws were retained

EU law binding in the UK before the 2018 Act and case law interpreting the EU law provided the judgement was given before the 21st of January 2020

what was the issue with retained laws

some retained laws no longer made sense as they referred to EU institutions — an order was passed that gave ministers the power to change these laws so they made sense

judges no longer were obliged to follow EU laws if they believed they were wrong

what happened to the primacy of retained laws?

Retained EU law retained primacy unless Parliament explicitly legislated to repeal it

Lipton & Another v BA City Flyer Ltd 2024

The Supreme Court held by majority that since the facts of the case occurred before Brexit Day, the Withdrawal Act 2018 would mean that their cause of action would be carried forward

If the facts arose after Brexit Day, EU law was persuasive but not binding

What did the Retained EU Law (Revocation and Reform) Act 2023 mean?

revoked the principle of the primacy of EU law

revoked 587 EU legislative instruments

revoked directly-effective EU law

gave ministers the power to replace or revoke retained EU law until June 2026

What did the The European Union (Future Relationship) Act 2020 mean?

The legislation was rushed and used broad and general language

Jeff King's view on The European Union (Future Relationship) Act 2020

"We don't know what changes to the law are in fact required by this EU-UK agreement, but whatever they are, Parliament by operation of this clause makes them effective from the date this law comes into force."