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

David Bridge

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Introduction

Will EU law still have supremacy? What role will EU courts have? Choice of law, jurisdiction and enforcement in the EU

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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))

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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
• r 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
• r 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))

“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

“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

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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

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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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