The European Union: The Case Of The
The European Union deems itself as a unique economic and political union between 28 EU Countries” (Union, 2019). The United Kingdom has on authority of Article 50 the Lisbon Treaty, on the 29th March 2017, made it known that it intends to withdraw from the European Union’ (Holland & Webb, 2019, p. 355).
The European Union still maintains its membership with the inclusion the United Kingdom, however, a chain of events has taken place, and continues to take place, as the UK journeys towards the ‘Exit day’, commonly referred to as ‘Brexit’. During this period, the UK remains a member state, bound by the laws of the European Union, as though no major events have taken place, i.e. the intention to withdraw from the European Union. It goes without saying, that the departure of the United Kingdom will bring about some lasting effects on its legal system.
To fully appreciate the likely effects of the withdrawal by the United Kingdom, (alternatively, the ‘UK’ or ‘Britain’), this essay will be divided into three sections.
Firstly, the essay focuses on how the United Kingdom’s legal system, developed post-UK’s membership to the EU. This will provide a synopsis of the areas to be affected by the signalled intention to depart from the EU.
Secondly, it will give particular focus to the legal basis of the UK’s withdrawal from the EU, specifically, the changes brought about by the Lisbon Treaty, particularly Article 50, of the Treaty of the European Union, that subsequently led to the enactment of the European Union (Withdrawal) Act 2018.
Thirdly, the essay will focus on the anticipated ‘new’ legal system of the United Kingdom post ‘exit day’. This will examine the effects likely to be felt as a result of the repeal of the European Communities Act 1972, which essentially domesticated and/or rendered EU law as the superior law of the land. It will detail how the European Union (Withdrawal) Act intends to pave a smooth transition out of the EU.
The United Kingdom As A Member State Of The European Union
Prior to being a member of the European Union, the United Kingdom had a working legal system. The judicial style then, as an example, was highly formal ruled-focused (Levitsky, 1994). This was in contrast to the EU Community. Levitsky further buttresses that as a result of community membership, the UK courts were encouraged to adopt the principle-centered substantive approach. A significant amount of law was ‘judge-made law’, and the legislative law reform process was the preferred mechanism for legal change.
All these, among other things, are areas that have over time evolved, to create what is UK law today, as a member of the EU.
The European Communities Act 1972
Through the enactment of the European Communities Act 1972, (Hereinafter the “ECA”), the United Kingdom started its journey to be a member of the now European Union. The long title of the ECA is that the Act was enacted to ‘make provision in connection with the enlargement of the European Communities to include the United Kingdom.’ The United Kingdom officially joined the EU in 1973.
It was necessary for the United Kingdom, (the UK) to enact this Act, as the international treaties establishing the EU had no place in the UK legal system. What this means is that, prior to its membership, Parliament was solely responsible for the enactment of UK laws. The EU treaties needed to be formally recognised through legislation in order to be part of the UK law.
Section 2 of the European Communities Act, provides that,
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect”
The Act localised the Treaties as they existed at the time of the enactment, and further adopted any future Treaties and or changes made by the European Union. In an unprecedented digression from the issues at hand, the Parliament through the enactment of the ECA made the first step towards the changes we have witnessed to the UK legal system since its membership to the EU. The Parliament enacted a law that ‘limited’ the rights of a future Parliament. Lord Denning, (Maccarthy Ltd v Smith, 1980), reiterated that “Community law is now part of our law: and whenever there is any inconsistency, community law has priority”. The ECA prevents the UK Parliament from enacting any laws that would contravene the EU Treaties or an enactment that would seek to revoke the localisation of the EU Treaties. (Costa v ENEL, 1964).
Following the enactment of the ECA and the formal membership of the United Kingdom to the European Community, a series of changes and/or influences can be observed as a result of community law. Similarly, a withdrawal from the European Union will bring about some changes and lasting effects.
The law of the European Union
Currently, the cornerstone of EU legislative framework is the Lisbon Treaty (2007). (Holland & Webb, 2019, p. 360). It is a consolidation of two treaties, viz, The Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union (TEU). The treaties make up the ‘non-negotiable’ parts of the law that member states are expected to accede to.
Through the ECA, the UK incorporated the then Treaty of Rome to its domestic laws. This is how, the laws of the European Economic Community (EEC), now EU, formed part of the laws of the UK as mentioned earlier.
Additionally, the make-up of the European law includes; Regulations, Directives and Decisions (Holland & Webb, 2019). Holland & Webb reiterate that, regulations, like treaties, are binding on all member states and have ‘direct application’ to member states. Further unlike Directives. `the end result of a Directive is what is deemed as binding on a member state. When Directives are issued, member states are afforded some time to put in place laws that will give effect to the Directive. Directives have ‘direct effect’ on all member states, unlike Decisions. Decisions are addressed to a one-member state.
Summarily, by withdrawing from the European Union, the UK will need to consider EU law in totality.
One may then ask whether the United Kingdom intends to do away with all the influences or changes that took place in its legal system by virtue of community membership over the past 46 years, or whether it intends to form a ‘new hybrid legal system?
A System Divorced From The European Union
This section will focus on the legal effects to be witnessed on the UK legal system as it departs from the EU. The UK’s exit plan is couched in the European Union (Withdrawal) Act 2018, (EU(W)A).
The Purpose of the EU(W) 2018
The EU(W)A has three purposes. Firstly, its purpose is to repeal the European Communities Act 1972 as of exit day (Perkins & Parekh, 2019). Perkins & Parekh further elucidate the purpose as, to copy into the UK’s domestic framework all directly applicable EU law which is in operation on Exit Day. Lastly, to give Her Majesty’s Government the ability to modify and adapt this ‘retained’ law as necessary to resolve any deficiencies referred to as “onshoring/nationalising the acquis.” “This would be achieved by means of statutory instruments (SIs) published by relevant ministries. (Perkins & Parekh, 2019, p. 653)”
The realisation of its purpose will have some lasting effects on the UK legal system.
Repeal of the European Communities Act 1972 on Exit Day (Pigott, 2018, p. 16)
The first and undisputed effect of the exit from the EU by UK is the fact that, the founding legislation, that made UK form part of the EU, and pave way in the UK law for the applicability of all EU treaties the doctrine of EU supremacy in the UK, will be repealed.
According to Pigott, section 1 of the EU(W)A effectively “severs the conduit pipe that has for more than 40 years allowed directly effective EU law to flow into UK law automatically.” This is the first immediate effect of the UK withdrawal from the UK. From the exit day, any new laws made by the EU will not “automatically” flow into the legal framework of the UK as has been the case since the enactment of the ECA.
Preservation of domestic legislation that implements into UK law EU law that is not directly applicable (Parsons, 2019, p. 9)
There is already an existing UK legal framework that is made up of EU laws, that came into being by virtue of UK’s community membership. Through the EU(W)A, the UK intends to maintain some level of continuity, by preserving the laws derived from EU, referred to as ‘EU-derived domestic legislation’ or ‘preserved legislation’.
Due to the nature of the UK’s legal system, these laws already exist within local Acts or Statutory Instruments, making the section 2 preservation highly conceivable (Holland & Webb, 2019, p. 358). We will see a UK divorced from the EU, however to a certain extent, still applying the same laws as those of the EU, i.e. still observing the same rights and obligations one would seek recourse for under the legal system as it were at the time the UK was a member state of the EU.
Save & Incorporate EU derived legislation (Pigott, 2018)
The UK legal system has maintained a requirement to incorporate EU law or any international treaty into domestic law to buttress its applicability in the UK. Whilst a member of the EU, the doctrine of supremacy assisted in somehow by-passing this requirement. There will be, on exit day, some Regulations and Treaties that have not been incorporated to UK domestic law through an Act or any secondary legislation. These would no longer be binding on the UK.
However, as outlined by Pigott, 2018, through the provision of sections 3 and 4 of the EU(W)A, the UK has decided to treat a significant portion of EU legislation as EU retained law. Similar to the laws already incorporated in Acts and Statutory Instruments, the EU law, particularly Regulations and Treaties not incorporated into UK domestic law, as it shall exist on exit day, will be incorporated, somewhat automatically into UK law. This will likely be the last automatic flow of EU law into UK law (Holland & Webb, 2019).
It is worthy to note that not all EU laws will be retained. An immediate example is the exclusion of the European Convention on Human Rights from the UK on exit day (QC & Horne, 2019, p. 458).
Enforcement and Interpretation of retained EU Law
Post-exit day, it is highly likely that there will be some gaps in the UK legislation or legal framework as a whole.
As a member of the EU, where inconsistencies were observed, or the UK required interpretation of EU law, matters were escalated to the European Court of Justice (ECJ). The effect of exiting the EU in this regard is such that, where the law is unclear, a decision of the ECJ, post-Brexit, on a matter similar to one before UK courts will no longer be binding on the UK courts. Of course, ECJ decisions prior to exit day will apply as binding precedents, however, post-exit day, decisions may be referred to persuasively.
Outside of case law, drawing from the EU(W)A Explanatory notes, ‘section 5 (2) provides that the principle of the supremacy of EU law will, where relevant, continue to apply as it did before exit. So, for example, a retained EU regulation would take precedence over pre-exit domestic legislation that is inconsistent with it. The principle would not, however, be relevant to provisions made by or under this Bill, or to other legislation which is made in preparation for the UK’s exit from the EU.’ (Parsons, 2019)
The EU(W)A thus “creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system, continues to function correctly outside the EU” (Finch & Fafinski, 2019, p. 39).
The repeal of the ECA 1972 has an impact on the supremacy and applicability of EU law on devolved settlements. Through section 12 of the EU(W)A, the three principal devolution acts are stripped of the requirement to maintain the supremacy of EU law (Pigott, 2018). Section 12 gives the UK some leeway to pause the legislative competence of the devolved authorities while determining the approach to be taken regarding retained EU law across the entire UK framework. This notwithstanding that the devolved authorities are through the EU(W)A empowered to remedy deficiencies in the in retained EU law (Pigott, 2018).
The UK is still required to fully address the impact of Brexit on the devolved settlements without violating the working system between England, Wales, Northern Ireland and Scotland brought about by the Sewel Convention (Keating, 2017). According to Keating, ‘Westminster will normally seek the consent of the devolved bodies before legislating in their fields of competence’.
The UK will emerge with a legal framework that ‘mimics’ EU member states laws. However, the benefits applicable across the EU, by virtue of the application of the Treaties and Regulations that all member states of the EU adhere too will no longer be automatically applied to the UK. Although some EU law will be retained impact will be felt as some rights and obligations will vary.
The UK will have its own laws and interpretations with no further reference or compliance with the ECJ or EU. The journey out of the EU will continue to be felt, as the UK maneuvers its new legal framework while seeking to start new ways of working hand in hand with EU member states in the day-to-day activities of a country in Europe.
Although UK will no longer be an EU member, the impact and changes brought about by community membership will play a big role in the new UK.
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