Hatchers’ Brexit Update #1

News Posted: February 7, 2018

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hatchers no-backAs negotiation for the United Kingdom’s exit from the European Union continue, Hatchers will be looking at the constitutional, legal and practical implications for the UK as a whole, as well as for you and your business.

The first of these updates follows below:

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Section 2(1) of the European Union (Withdrawal) Bill states:

EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day

After ‘Brexit’ the Withdrawal Bill will freeze the law as it stands on ‘exit day’ and it will stop developing in tandem with European Union (EU) and Court of Justice of the EU (CJEU) decisions.

However, the process behind the Withdrawal Bill is not as simple as s2(1) suggests, as much of the EU law being transposed in into UK law refers to various EU institutions, which the UK will no longer be involved with. Therefore, the Government must act to amend the relevant laws.

A report written by the House of Commons Library in May 2017 stated: “The review of all EU-related legislation, as well as that which will be transposed by the Great Repeal Bill, makes this potentially one of the largest legislative projects ever undertaken in the UK” and estimated that 13.2% of UK primary and secondary legislation was derived from the EU.

The principle of the supremacy of EU law means that in the case of conflict between UK law and EU law, UK courts must give precedence to EU law. However, section 5(1) of the Withdrawal Bill states: “The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day”.

Whilst Parliament will be free to adopt (or depart from) EU law as it chooses, this will not be an instant process as the UK will not directly or automatically take any refinement or development of EU law. This may create a two-stage process where the EU amends its existing law (by no means a quick process in itself) and then the UK must go through its own parliamentary process and vote whether to adopt the same, causing further delays in adopting any desirable EU law.

At the same time, UK cases will be heard by the Supreme Court, who have the power to decide whether case law will depart from previous decisions of the CJEU. This means that UK case law may develop separately from any CJEU decisions, which will no longer be binding on the UK courts. Although it is worth noting that section 6(2) of the Withdrawal Bill states UK Courts may have regard to CJEU decisions “if it considers it appropriate to do so.”

Of course, much of how UK law will develop is dependent on the UK’s relationship with the EU after ‘Brexit’ and whether a ‘soft’ or ‘hard’ ‘Brexit’ is negotiated.


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