European Union (Withdrawal) Act 2018: a profound change to the English legal system David Bridge January 2019
Introduction Will EU law still have supremacy? What role will EU courts have? Choice of law, jurisdiction and enforcement in the EU 1
Will EU law still have supremacy? Principle of supremacy continues to apply to interpretation, disapplication or quashing after exit day of retained EU legislation passed or made before (section 5(2)) modification on or after exit day to retained EU legislation if accords with intention of modifications (section 5(3)) Ceases to apply to any enactment/rule of law passed or made on or after exit day (section 5(1)) Charter of Fundamental Rights is not part of domestic law on or after exit day (section 5(4)) 2
What role will EU Courts have? Decisions of the Court of Justice of the European Union (CJEU) made before exit day are “retained EU case law” and bind all courts below the Supreme Court (section 6(1)) UK courts and tribunals will not be bound by principles laid down or decisions of the CJEU made on or after exit day (section 6(2)) But a UK court or tribunal can have regard to anything done on or after exit day by the CJEU, the EU or another EU entity “so far as it is relevant to any matter before the court or tribunal” (section 6(2)) UK courts and tribunals cannot refer any matter to the CJEU on or after exit day (section 6(1)) “ We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain ” – Theresa May, January 2017 “ This needs to be debated. I know it would make working this out now more difficult, but putting that off and leaving it to the judges – I think there are fairly strong views amongst most of us that we don’t want to be landed with making policy decisions .” – Lord Thomas of Cwmgiedd, LCJ 3
Choice of law, jurisdiction and enforcement in the EU Choice of law clauses will continue to be effective in the EU as Rome I and II recognise choice of non-EU state law and the UK is likely to replicate them in domestic legislation Jurisdiction clauses currently recognised under Brussels Regulation (Recast), but this will cease to apply to clauses in favour of English courts on exit day UK government says it will: sign the Hague Convention on Choice of Courts Agreements (covers exclusive jurisdiction clauses, but can be achieved unilaterally) sign the Lugano Convention (covers non-exclusive jurisdiction clauses as well, but requires consent of EU and EFTA states) Neither is quite as good as Brussels Regulation (Recast) and transition provisions may cause issues Enforcement of English judgments across EU currently governed by Brussels Regulation (Recast) – post Brexit local rules will apply Limited assistance on enforcement under Hague Convention, more under Lugano 4
Appendix •European Union (Withdrawal) Act 2018 •Act •Explanatory Notes •EU/UK Withdrawal Agreement •Withdrawal Agreement (25 November 2018) •Explainer Note •Future UK/EU Relationship •Political Declaration (25 November 2018) •Explainer note •UK Government slides on Withdrawal Agreement and Political Declaration •EU (Withdrawal Agreement) Bill •24 July 2018 White Paper • The Brexit Deal Explained 5
elexica.com/brexit elexica.com/en/blog/breaking-down-brexit elexica.com/en/resources/microsite/disputes-aviator simmons-simmons.com elexica.com LIVE_EMEA1: 41738541
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