Where we go from here – a new “species” of law!
Until now, EU law has provided major elements of law in the UK, both insofar as it has regulated our legal relationships with the world – EU member states and beyond – but it has also seeped through the pores of our domestic law and influenced the principles and values that determine our national law.
Despite the impression created by certain elements of the press, the influence of EU law is not going to stop overnight on exit day. Nonetheless, just how EU law will continue to influence UK and the extent of EU law influence going forwards is difficult to predict. It is unclear if and to what extent the political architects of Brexit understood/understand the degree of entanglement between EU law and our domestic law. But we are where we are. And where we are is complicated.
As things currently stand, there seem to be three scenarios which broadly show how and when new EU law will stop taking priority over UK domestic law. (And as an aside, EU law only ever regulated limited, albeit significant, areas of our law. We never “lost control” over much of our domestic law when the UK joined the European Community in 1973, nor subsequently. The situation was one of shared sovereignty, not lost sovereignty. By being part of the EU, we were travelling along the same legal path with the same aims and objectives. In contrast, those who have orchestrated and support the Brexit project want the UK be able to diverge and choose different legal routes going forwards).
Returning to future scenarios of the influence of EU law, firstly, there could be an immediate “no deal” or “hard” Brexit at the end of January 2020 (thankfully, this is now looking very unlikely in the light of Mr Johnson’s deal agreed with the EU on 17 October 2019 and which allows for a short transition period from 1 February 2020 through to the end of 2020).
Secondly, the Johnson government could spend another eleven months trying to negotiate with the EU in a transitionary period that starts in February 2020 and the negotiation comes to nothing. The EU has indicated that they do not believe that it is possible to conclude the proposed agreement in eleven months because what needs to be negotiated is far more complex than the Brexit negotiations to date and Ursula Von de Leyden, the EU Commission President has already called for serious consideration to be given to extending the period.(As an aside, some in the media are talking about the possibility and advantages of a series of “mini” agreements. However, anyone who has conducted even the most basic of negotiations knows that, tactically, the party with the “upper hand” will be averse to hiving off topics and areas under negotiation. They use their overall negotiating advantage as leverage over sub-areas. The adage is that “nothing is agreed until everything is agreed”).
Therefore, assuming that Mr Johnson’s new government does not to ask the EU for an extension to the transitionary period, which seems currently to be the government’s preferred option enshrined in law, then there will be a real risk of a “no deal” or “hard” Brexit at the end of 2020. (As things stand in January 2020, a deferred “no deal” or “hard” Brexit at the end of 2020 looks to be the most likely option).
A third scenario is that the political negotiating period is extended (despite the opposite indications from the current Executive) for an unknown period with the UK having an uncertain legal status during that (unknown) period, but with large chunks of our political relationship with the EU staying the same and, thus, much of our currently EU-influenced law not changing.
To emphasise though, even if the UK stops being a member of the EU without a short transitionary period (now very unlikely) or if the transition period is abruptly terminated by the UK (on 1 January 2021 or before), then EU law will still continue to apply to large swathes of our law on Brexit day. At least in the short term.
It seems to have become fashionable in recent years for politicians and commentators to talk about future “roadmaps” for countries undergoing upheaval. Those that have advocated Brexit have created the impression via the media that the post-Brexit UK will no longer be burdened by EU law, which has been characterised by them as being an encumbrance on the UK’s ability to organise its internal affairs and, particularly, a limit on the UK have trading relationships with countries beyond the EU. To that end, the European Union (Withdrawal) Act 2018 is the legal vehicle by which we leave the EU and it sketches out the basic framework of the status of EU law in UK domestic law going forwards. However, (spoiler alert for those who do not like EU law), those driving the UK vehicle leaving the EU and crossing the border into Brexitland may see sunny uplands ahead through the future-facing windscreen, but the UK will be towing a massive caravan or trailer full of EU law along for the ride. The practical effect of the future political negotiations will have the consequence of deciding the size of the caravan or trailer, and precisely what is in it. As lawyers we (still) do not know whether we will be taking with us the legal equivalent of a sophisticated set of useful features including the metaphorical “kitchen sink”, or the legal equivalent of “the basics”. As the country does the legal equivalent of packing up to move to Brexitland, it is uncertain precisely what we will be taking with us.
If the UK’s departure from the EU occurs without a comprehensive (political) deal being completed by 1 January 2021 (currently the most likely outcome in the view of the EU, but absolutely denied by the UK government), then the framework of retained EU law, under the European Union (Withdrawal) Act 2018, will kick in with immediate effect. Alternatively, if we leave with a deal, then we will look to the withdrawal agreement that was concluded on 17 October 2019. That provides for a transitional period during which normal EU law would continue to apply. The transitional period would, however, only apply up until the end of 2020 unless the period is extended (and the government has indicated that it will not extend). From the end of the transitional period (in all current likelihood from 1 January 2021), then the framework of retained EU law will then apply in our national legal system.
Retained EU law – a new species of UK law
So what is this “retained EU law” which will be coming with us when we move to Brexitland?
Retained EU law is the new constitutional framework for former EU law to continue to apply in the UK legal system after we leave the EU. “Retained EU law” is established by sections 2 to 7 of the EU (Withdrawal) Act 2018. What that Act does is take a “photocopy” or “snapshot” of all EU law as it applies in the UK at the point that we leave (after a transitionary period, truncated or otherwise). That photocopied law is then cut and pasted into our domestic legal system, so that the “retained EU law” continues to apply, but is re-branded as UK retained law.
So what’s the point of the EU (Withdrawal) Act 2018 if the whole point of Brexit is to no longer be under the influence of EU law – the “take back control” idea articulated by those who advocated the change? The point of the EU (Withdrawal) Act 2018 is to provide some continuity and to avoid a situation where that body of EU law which has applied for many years – the “acquis communautaire”- in our national legal system does not just disappear, leaving a void or vacuum, overnight. This is to (try to) provide comprehensive protections of legal certainty and the rule of law, as opposed to a legal abyss which would be dangerous for anyone to fall into, or a legal vacuum which would suck in all manner of undesirable, unregulatable and law-evading possibilities.
Over time, it is predicted that the body of “retained” (photocopied-cut-and-pasted) EU law may be systematically reconsidered and gradually removed or replaced by domestic legislation that is passed in the usual way. As I write, the press is reporting on the proposed changes to the Dublin III Regulations in relation to unaccompanied child migrants and their ability to be re-united with family members in the UK. On 3 January 2020 the government published their plans to change the legal framework concerning EEA offenders to bring the law in closer alignment to the rules that apply to third country criminals (ie non-EU “foreign” national offenders).
As an added complication, though, it should be borne in mind that the “usual way” the UK domestic law is brought to life can be through Acts of Parliament, statutes, which are subject to public scrutiny and debate in Parliament. However, the UK Parliament frequently passes statutes which give the UK government the power to create new legislation by statutory instrument.
The detail of statutory instruments is not subject to the same public debate and scrutiny. Of perhaps greater concern, particularly for legal certainty and knowing the extent to which the law has been amended, changed or “updated”, legal commentators have noted the use of Henry VIII powers by the executive to generate small but important changes in the law, if not in secret, then away from the glare of publicity.
Legal commentators are concerned that, going forwards, the government might make radical changes to the law via statutory instruments and delegated powers in circumstances where it will be very difficult for those not immediately involved in the process to influence the granular detail of the changes. There may also be issues regarding how easy it will be for lawyers to find and keep abreast of such changes. It will be for others to comment on how this process accords with the political aspiration for the country to “take back control”. But it is going to create challenges for even the most conscientious lawyers and careful judges to be confident that they know what the law is in a particular area where there is, was or might be EU retained law.
Going back to retained EU law on Brexit day (whenever it is), retained EU law consists of almost all EU law as it applies in the UK at the point of exit. The European Union (Withdrawal) Act 2018 breaks that down into three categories in sections 2, 3 and 4.
The second is EU legislation which is directly applicable in the UK. An example of that is the EU General Data Protection Regulation 2016. The GDPR Regulations were brought into UK law by the Data Protection Act 2018.
The third category is directly effective EU rights. An example of that would be the right to equal pay for men and women, as set out in Article 157 of the Treaty on the Functioning of the European Union (TFEU).
Application of EU law going forwards post-Brexit?
Implications of EU case law will still apply, post-Brexit, when our domestic courts are interpreting and applying retained EU law. That is set out in section 6 of the European Union (Withdrawal) Act 2018.
This means that the full body of case law developed in both the EU courts and the UK courts over the years up until the point when we leave will continue to be binding on all UK courts – see s6(3) of the EU (Withdrawal) Act 2018. However, if a case goes all the way up to the UK Supreme Court, (or the High Court of Justiciary in Scotland), then those uppermost courts may decide to depart from that “old” EU-influenced case law – see s6(4) of theEU (Withdrawal) Act 2018.
Until the UK Supreme Court (or the High Court of Justiciary in Scotland) reach a decision which is different from EU jurisprudence on a particular point, (or new UK legislation is passed – see s5(1) EU (Withdrawal) Act 2018) then the retained EU law is supreme over and “trumps” existing domestic legislation in much the same way as EU law was before we left the EU (see s5(2) EU (Withdrawal) Act 2018). In this way, the European Union (Withdrawal) Act 2018 thus provides continuity of law.
In effect, section 6 of the European Union (Withdrawal) Act 2018 applies the “Marleasing” principle. (The Marleasing case re-affirmed the position in the cases of Van Colson that national courts must, as far as possible, interpret national law in the light of the wording and purpose of the relevant EU Directive in order to achieve the result envisaged by the Directive and whilst having regard to the usual methods of interpretation in their own legal system, and must give precedence to the method which engages it to construe the national provision concerned in a manner consistent with the Directive).
Therefore, applying the Marleasing principle of consistent interpretation, the UK Working Time Regulations, say, must be interpreted so that the result is consistent with the EU Working time Directive. Even post-Brexit! So, if it transpires that, even post-Brexit, a national law provision is inconsistent a retained directly applicable EU provision, then the EU legislation would prevail and trump the “national” law. As alluded to above, the same principle would apply to EU Treaty rights with direct effect (eg the EU General Data Protection Regulation). The same is also true for directly effective Treaty rights (eg Art 157 TFEU right to equal pay for men and women).
The above has mainly focussed on existing domestic legislation. Nonetheless, it needs to be borne in mind that section 5(1) of the EU (Withdrawal) Act makes clear that EU law is not supreme over new domestic legislation which is made after the UK has left the EU. Presumably, politically, that was the objective of Brexit – that the UK can now pass laws that diverge from EU laws in the domains where EU had exclusive competence or shared competence with the UK when it was a member state.
European Court of Justice (CJEU A.K.A. ECJ) decisions?
And what of the significance or authority of new EU law, including decisions of the European Court of Justice (CJEU) (the Court in Luxembourg) going forwards post-Brexit?
Pursuant to s6(1) of the EU (Withdrawal) Act 2018, Courts and Tribunals in the UK will not be bound by any new principles laid down by, nor any decisions made, on or after Brexit day. Nor will any UK Judge retain the power to refer a case or question to the CJEU. However, pursuant to s6(2) of the EU (Withdrawal) Act 2018, a UK Court or Tribunal “may have regard to anything done on or after exit day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.” In short, it appears that (at least prima facie, although this area has all the hallmarks of an EU/UK law essay question….) new EU law and new CJEU decisions will have the same status and persuasive force as other “foreign” law has when UK Judges make decisions on domestic cases.
As an aside, it will be interesting to see how the Scottish Courts apply EU law, particularly in the areas where they have exclusive competence, and how the Scotts law may diverge from UK law, perhaps in the light of very different political ambitions in Scotland.
Despite the narrative in sections of the media surrounding “taking back control”, it seems that the ongoing significance of EU law will continue to permeate our national legal system for the foreseeable future. Also, as a matter of practicalities rather than jurisprudential aspiration, after the UK leaves the EU, the UK negotiators will be seeking to reach an agreement with the EU on a future relationship or partnership, particularly in relation to trading relationships. That may or may not to some extent end up including commitments to retain elements of EU law in our national legal system. In fact, it is difficult to see that the UK government, in the end, will not retain some elements of EU law (the rights of EU Citizens in the UK being an obvious area for such agreement, for example). However, to whatever extent there may (or may not be) such commitments, the residual position, which is set by default in the EU (Withdrawal) Act 2018, will be to preserve EU law for many years to come. One would progressively expect to see domestic legislation passed in the usual way gradually amending and repealing that retained EU law. Nonetheless, some retained EU law is likely to persist. And, whilst we are currently on course for five years of supposedly settled politics, even that may change.
In terms of European legal values, particularly as articulated in the preamble to the Treaties , one would hope that the politicians’ negotiators do not throw out any babies with the bathwater. (See the Preamble of the EU Treaties which includes noble sentiment such as: DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law; RECALLING the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe…..)
In the meantime, neither should lawyers, judges, legal academics and students throw out their EU law textbooks just yet.