European Union (Withdrawal) Act 2018: a profound change to the - - PowerPoint PPT Presentation

January 2019

European Union (Withdrawal) Act 2018: a profound change to the English legal system

Simon Fraser

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Introduction How do we interpret retained EU law

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How do we interpret retained EU law? (1)

• A brief recap on retained EU law
• EU principles of interpretation remain relevant
• Section 5(2) EU (W) A 2018

 supremacy of EU law continues to apply after exit day to the interpretation (amongst other things) of any enactment or rule of law passed or made before exit day

• Section 6(3)(a) EU (W) A 2018

 any question as to the validity, meaning or effect of any retained EU law is to be decided (so far as unmodified on or after exit day) in accordance with any retained case law and any retained general principles of EU law

• Conceptual divergence between

 EU law  English law

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How do we interpret retained EU law? (2)

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How do we interpret retained EU law? (3)

• EU courts

 generally adopt a purposive approach  consider not only the words used but also, where appropriate, the context in which they occur and the object of the rules of which they form part  De Jaeck v Staatssecretaris Van Financiën [1997] 2 CMLR 799 814

• English courts

 generally adopt a literal approach  consider the natural and ordinary meaning of the words used  Maunsell v Olins [1975] AC 373, 395 (Lord Simon of Glaisdale)

• Reasons for divergence are historical (role of judiciary), practical (linguistic) & legal (proportionality)

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How do we interpret retained EU law? (4)

• Example of a possible new problem

 UK statute which contains both domestic & retained EU law (unmodified)

• Will the conceptual divergence produce different legal outcomes?

 Unlikely for a number of reasons

• Gradual convergence between the two approaches

 Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791, 805 (Kay LJ)  the literal tradition is weakening  Mykoliw v Botterill [2010] CSOH 84, para. 28 (Lord Pentland)  cites with approval an English law text on interpretation  argument about literal and purposive interpretations “now probably wholly futile”

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How do we interpret retained EU law? (5)

• English courts may depart from literal interpretation if

 it would lead to objectionable or undesirable result R (Edison First Power Ltd) v CVO [2003] 4 All ER 209  it would lead to the court neglecting the purpose of Parliament R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687  it would put the UK in breach of its (EEC) treaty obligations Pickstone v Freemans PLC [1989] 1 AC 66

• Principles of EU interpretation only apply to retained EU law (unmodified)
• Practical conclusions

 remember conceptual differences  be alert to additional qualifications in advice or opinions

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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

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