Leaving the EU - Withdrawal, Devolution, Northern Ireland and Future Relationship - Lecture 18

What is Brexit? Is it uncertain and why?

• The open-ended question meant that Parliament and the Government would have to determine what leaving the EU meant, and those who intended to leave the EU had varying degrees in ways they envisioned this - such as a radical, moderate or slight departure from the EU.

  • Those who voted in favour of leaving the EU perceived the results as being too radical - rather imposing a more moderate form of Brexit.

  • The UK ended up with a form of Brexit much more radical than the majority of voters wished for.

Explain the political shifts in stances - from Theresa May, Boris Johnson and Rishi Sunak’s government?

1. Theresa May’s government

   • They were more willing for the UK to follow EU rules in order to maintain free access to the Single Market and minimize the risk that an economic border might need to be imposed between Great Britain and Northern Ireland.

2. Boris Johnson’s government

   • They were more willing to endure the economic hit involved in losing access to the Single Market to make Brexit more meaningful and to accept an economic border between Northern Ireland and the rest of the UK

3. Rishi Sunak’s government

   • They adopted a more conciliatory approach and ended up with the Windsor Framework, a deal that modified the operation of the Protocol while keeping its core provisions intact.

Miller I case on triggering art 50

Outcome → The Supreme Court ruled in Miller I that the decision to trigger Article 50 of the European Treaty (the provision governing exit from the EU) could not be achieved by means of the prerogative powers but, because the European Communities Act made EU law a source of UK law, parliamentary legislation was required

Importance → The Supreme Court emphasised that the Article 50 and the European Treaty was not just a treaty, but a legal order which was established. It was emphasised that EU law itself changed UK common law and therefore in order to invalidate the treaty, Parliament must create an Act to counteract it

Information on Withdrawal Agreement 2019?

• In 2019, the UK and the EU agreed a Withdrawal Agreement

• This guaranteed of rights of EU citizens living in the UK and UK citizens living in the EU. EU citizens in the UK and UK citizens in the EU will be allowed to remain.

• Any issues in relation to the interpretation of EU law would be decided by the European Court of Justice.

Information on Northern Ireland Protocol?

The Good Friday Agreement was underpinned by an assumed shared EU membership between Ireland and the UK.

• A relatively open border between Northern Ireland and Ireland is also regarded as a necessary element of the peace process by many nationalists

  • Under Brexit, there were concerns that the European Single Market border would divide Northern Ireland and the Republic of Ireland

  • Concerns that imposing an economic border to goods in the Irish Sea would be in breach of the Good Friday Agreement

Information on Windsor Framework - a solution to the Northern Ireland Protocol?

A ‘Green Channel’ was established under which goods from Great Britain destined to be sold in Northern Ireland and which will not move on to the Republic can enter the North with a minimum of checks.

Dillon and Others v Secretary of State for Northern Ireland on fundamental rights protection in Northern Ireland

Context → This case focuses on a criminal investigation into the killings committed by the British Army and the IRA - looking into killings on both sides. However, both nationalists and unionists disagreed, not wanting amnesty but instead punishment for the people who committed these crimes and the families of victims argued that these provisions regarding amnesty were already addressed within EU law and by that logic, the UK amnesty act should be disapplied.

Outcome → The Northern Irish Court of Appeal found that because the amnesty provisions affected EU law rights covered by the Protocol, the Act would have to be disapplied.

Importance → This ruling highlights how a starkly different, and much more EU influenced legal order now applies in Northern Ireland.

Information on The Trade and Co-operation Agreement and what does it provide?

• In relation to goods, the EU and UK will give each other quota and tariff-free access to their markets but there is no ‘mutual recognition’ of each other’s product standards.

  • Goods moving between the EU and UK must satisfy the regulatory requirements of both the UK and EU.

• Each side will respect the ‘level playing field’ that is if either party changes its laws in areas such as social or economic regulations, in a way that is liable to give their businesses an advantage, the other party (i.e. EU or UK) can impose retaliatory tariffs

• In relation to services, service providers may sell services in the other’s market but they must comply with the rules of the host state

What is the European Union (Withdrawal) Act 2018? and What did it do?

This sought to prevent Brexit from causing legal chaos by ensuring EU law continued to apply in an adapted form post-Brexit.

What did it do? -

1. repealed ECA 1972 and ended it’s direct effect and the supremacy of EU law

2. Only repealed future EU laws, so current EU laws remain and are labelled as ‘retained EU law’

3. It provided a wide range of ministerial powers to make amendments where there are gaps, comply with international obligations and etc..

4. Court of Appeal and Supreme Court not bound to follow retained EU case law

5. CJEU rulings are persuasive authority, but not binding

6. General principles of Eu laws are retained in so far that they are recognised by the UK gov before Brexit happened

Lipton & Another v BA City Flyer Ltd on the Withdrawal Act 2018

Outcome → The Supreme Court held (by a majority) that the Withdrawal Act 2018 constituted a complete code established by Parliament to deal with all aspects of the application of EU law in the UK following the completion of Brexit.

Importance → This means that if the facts arose before the exit day, then the courts would be obliged to follow the law as it was according to pre-brexit times, HOWEVER if the facts arose after the ‘exit day’, then the law would only be persuasive, NOT authority.

What is the Retained EU Act 2023?

• revocation of all directly-effective EU law and retained general principles of EU law

• revocation of the principle of primacy of EU law (as applied to retained EU law)

• renaming of retained EU law as ‘assimilated law’

• encourages lower courts to depart from legacy CJEU caselaw

What is the EU (Withdrawal Agreement) Act 2020?

• gave legal force to the agreement reached between the UK and EU in relation to the rights of EU citizens living in the UK prior to Brexit

• UK courts may still make references to the CJEU in relation to the interpretation of the citizens’ rights provisions of EU-UK Withdrawal Agreement for 8 years

• gave legal force to the agreement reached between the UK and EU in relation to the rights of EU citizens living in the UK prior to Brexit

• Gave legal force to the financial element of the agreement and to the Northern Ireland Protocol

What is the EU (future relationship) Act 2020?

As this agreement was reached only weeks before the end of the transition period there was little time to draw up and debate this piece of legislation.

This meant that strikingly broad and general language had to be used.

Jeff King on EU-UK agreement

“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.”