Understanding Retained EU Law and Withdrawal Agreement Provisions

The Nature and Status of Retained EU law and Withdrawal Agreement Provisions It s law, Jim, but not as we know it Prof. Alison L Young Robinson College University of Cambridge

EU-derived Domestic Legislation section 2 MOSTLY secondary legislation -e.g. Working Time Regulations 1998 BUT can this also extent to primary legislation; what if this is only partly to implement EU obligations - e.g. Equality Act 2010 Retained EU Law : EU (Withdrawal) Act 2018 Direct EU Legislation section 3 Secondary Legislation e.g. Regulations, Decisions but NOT Directives Tertiary Legislation e.g. Regulations and Decisions made by the Council or Commission alone, through a provision empowering them to act found in Secondary Legislation Directly effective provisions of EU law section 4 Directly effective provisions of Directives Directly effective provisions of Treaties Retained EU Case law section 6 Interpretations of retained EU law General principles of EU law

GENERAL EXCEPTIONS Exceptions and Limitations to Retained EU Law DOES NOT include the EU Charter of Fundamental Rights and Freedoms (section 5(4)) BUT DOES include the general principles of EU law (section 5(5)) but only those recognised in case law prior to IP Completion Day and only as principles of interpretation (Schedule 1, paras 2 and 3) DOES NOT include Francovich damages (Schedule 1, para 4)

ONLY INCLUDES Provisions of EU law in Part 4 of the Withdrawal Agreement E.g. not club rights DOES NOT include Decisions addressed to Member States other than the UK The provisions found in section 7A and 7B of the European Union (Withdrawal) Act 2018 Decisions relating to enhanced co-operation or External Actions and the Common Foreign and Security Policy enacted prior to the Lisbon Treaty Specific Exceptions: Direct EU Legislation

DIRECTIVES DOES NOT INCLUDE Directives that have been incorporated into domestic legislation instead you refer to the UK domestic law provisions E.g. do not use the Working Time Directive use the Working Time Regulations 1998 DOES NOT INCLUDE rights under a Directive not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP completion day (section 4(2)(b) European Union (Withdrawal) Act 2018 Court must have recognised this aspect of a Directive is sufficiently clear and precise to have direct effect? Date of implementation must have passed? Only vertical and not horizontal direct effect? Specific Limitations: Directives Implementation No Implementation Mis- implementation

Withdrawal Agreement Provisions: European Union (Withdrawal Agreement) Act 2020 Rights of EU Citizens in the Withdrawal Agreement (Section 7A EU(W)A 2018) Provisions protecting rights of citizens of EEA, EFTA and Switzerland (Section 7B EU(W)A 2018) Protocol on Northern Ireland (Section 7A EU(W)A 2018)

Source Originally enacted as a form of EU law and not as a form of UK law Differences Unique form of law? Status Interpretation Force Judicial Review

EU-derived domestic legislation Its status remains the same i.e. depends on whether this is primary or delegated legislation Retained EU Case law Retained EU legislation (EU(W)A 2018, section 7) Principal NOT EU tertiary legislation Treated as if it is primary legislation Minor NOT EU Principal legislation Treated as if it is secondary legislation BUT The provisions only relate to how this is REPEALED and so this is not a full account of the status of retained EU law Do we apply this distinction by analogy to conflicts with other forms of law? Status: Retained EU Law Directly effective provisions of EU law Treated as if this is primary legislation BUT same element of reference to repeal only

Validity, meaning or effect interpreted in line with retained EU case law and the general principles of EU law and regard to the limits of EU Competence (at IP Completion Day) (section 6 (3) EU(W)A 2018) BUT AT THE MOMENT - the Supreme Court is not bound by retained EU case law IN THE FUTURE other courts also may not be bound by retained EU case law (and domestic law applying EU case law)(section 6(5A) EU(W)A 2018) Consultation Court of Appeal and equivalent High Court and Court of Appeal and equivalents Interpretation: Retained EU law NOT bound by decisions made on or after IP Completion Day BUT MAY have regard to CJEU decision SO FAR AS IT IS RELEVANT TO ANY MATTER BEFORE THE COURT OR TRIBUNAL (section 6(1) EU(W)A 2018)

ALMOST the same as for domestic legislation The supremacy of retained EU law only applies to provisions enacted prior to IP Completion Day (section 5(1) and (2) EU(W)A 2018) BUT Retained EU law MAY disapply modifications to laws enacted prior to IP Completion Day that were made after IP Completion Day when this was the intention of the modification. Force: Retained EU Law

Judicial Review: EU Retained Law Same as domestic law.

Do we consider these provisions as having a similar status to EU law during EU membership? HAVE direct effect and supremacy HAVE element of different interpretation Preliminary reference (Article 158(1)WA and section 7C EU(W)A 2018 first 8 years for Citizenship Rights) (may not must) Preliminary reference for NI Protocol (Article 267: must) Status: Withdrawal Agreement BUT UK Internal Market Bill 2019-21

Interpretation: Withdrawal Agreement Provisions European Union (Withdrawal) Act 2018, section 7C These provisions have to be interpreted in line with the relevant separation agreements Taking into account the element of ensuring consistency

Direct Effect and Supremacy of Citizenship Provisions and NI Protocol section 7A EU(W)A 2018 Direct Effect and Supremacy of Citizenship Rights under EEA, EFTA and Swiss Citizenship Rights -section 7B EU(E)A 2018 The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be Force: Withdrawal Agreement (a)recognised and available in domestic law, and (b)enforced, allowed and followed accordingly. (3)Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2). European Union (Withdrawal Agreement) Act 2020, section 38

UK Internal Market Bill 2019-21 NOW clauses 44, 45 and 47 Switch off direct effect and supremacy of WA as regards Regulations for exit procedures and descriptions of goods from NI to the UK State Aids under the N Ireland Protocol (article 10 NI Protocol) Force and Judicial Review: Withdrawal Agreement Not able to be declared unlawful for transgressing relevant international and domestic law BUT If you can have modifications for time limits, this means there must be some form of possible judicial review Can challenge this for transgressing Convention rights under the Human Rights Act 1998 BUT Delegated legislation enacted under sections 44 and 45 is primary legislation for the purposes of the Human Rights Act 1998