Exceptions to savings and incorporation
The Withdrawal Act sets out two exceptions to the saving and incorporation of EU law provided for. The first exception is the principle of supremacy of EU law. The principle of supremacy means that domestic law must give way if it is inconsistent with EU law. In the UK this can mean that a court must disapply an Act of Parliament, or a rule of the common law, or strike down UK secondary legislation even if the domestic law was made after the relevant EU law.
The principle will not apply in respect of the disapplication of legislation which is passed or made on or after exit day (an Act is passed when it receives Royal Assent). So, for example, if an Act of Parliament is passed on or after exit day which is inconsistent with EU law which is preserved or converted by the Act (for example, a retained EU regulation), that new Act of Parliament will take precedence.
Where, however, a conflict arises between pre-exit domestic legislation and retained EU law, the Withdrawal Act 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 Act or to other legislation which is made in preparation for the UK’s exit from the EU.
The principle of supremacy also means that domestic law must be interpreted, as far as possible, in accordance with EU law. So, for example, domestic law must be interpreted, as far as possible, in light of the wording and purpose of relevant directives. Whilst this duty will
not apply to domestic legislation passed or made on or after exit day, the Act preserves this duty in relation to domestic legislation passed or made before exit.
The principle of supremacy can continue to apply to preexist law which is amended on or after exit day where that accords with the intention of the modifications.
The second exception is the Charter of Fundamental Rights. The Charter did not create new rights but rather reaffirmed rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Act. References to the Charter in the domestic and CJEU case law which is being retained, are to be read as if they referred to the corresponding fundamental rights.
Given that the Charter did not create any new rights, the Act makes clear that, whilst the Charter will not form part of domestic law after exit, this does not remove any underlying fundamental rights or principles which exist, and EU law which is converted will continue to be interpreted in light of those underlying rights and principles.
Further provision about exceptions to savings and incorporation
The Withdrawal Act Schedule 1 sets out some further exceptions to the preservation and conversion of EU law provided for.
On or after exit day, no challenge can be brought in the UK courts to retained EU law on the basis that immediately before exit day, an EU instrument (for example, an EU regulation or decision) was invalid. This restriction is, however, subject to the exception that any decisions of the CJEU which pre-date exit day about the validity of the instrument will not be affected. Secondly, a Minister of the Crown has the power to describe in regulations types of challenge to validity which will be capable of being brought in domestic courts on or after exit day.
Only the EU general principles which have been recognised in CJEU cases decided before exit will form part of domestic law after exit. These include, for example, some fundamental rights, non-retroactivity, and proportionality.
The Withdrawal Act provides that there is no right of action in domestic law post-exit based on failure to comply with the EU general principles. Courts cannot disapply domestic laws post-exit on the basis that they are incompatible with the EU general principles. Further, domestic courts will not be able to rule that a particular act was unlawful or quash any action taken on the basis that it was not compatible with the general principles. Courts will, however, be required under to interpret retained EU law in accordance with the retained general principles.
The restriction on challenges based on incompatibility with any of the general principles of EU law does not apply in respect of certain proceedings begun within three years of exit day. In order to fall within the scope of this subparagraph, any challenge must relate to something that occurred before exit day and may be made against either administrative action or domestic legislation other than Acts of Parliament or the common law. Courts, tribunals and other public authorities will be able to disapply legislation or quash conduct in the event of a successful challenge.
The right of challenge cannot be used in relation to anything which gives effect to or enforces an Act of Parliament or the common law, or anything which could not have been different as a result of any Act of Parliament or rule of law.
Rule in Francovich (Damages)
In Francovich the CJEU established that in some circumstances states have to compensate individuals for damage that they suffer as a result of the state’s breach of EU law. EU law confers a right to reparation where the rule of law infringed is intended to confer rights on individuals, the breach is ‘sufficiently serious’, which means that the member state has manifestly and gravely disregarded the limits of its discretion, and where there is a direct causal link between the breach and the damage.
The Withdrawal Act provides that the right to claim damages against the state for breaches of EU law (Francovich damages) will not be available after exit. This provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law (for example, under the Public Contracts Regulations or the case law which applies to the interpretation of any such provisions.
The prohibition in the Bill on seeking Francovich damages in domestic law for two years after exit day. This ensures that the Bill will not prevent individuals from continuing to seek such damages in domestic law where a breach of EU law occurred before exit day.
Instruments which are exempt EU instruments
The Withdrawal Act sets out which EU instruments are to be regarded as ‘exempt’ and therefore excluded from the saving and incorporation of direct EU legislation prior to exit day.
Exempt EU instruments” includes a number of categories of EU decision which do not apply to the UK. These include:
- existing EU decisions which do not apply to the UK under relevant Protocols; and
- decisions relating to common foreign and security policy under Title V of the pre-Lisbon TEU and under the current Title V of the TEU (post-Lisbon).
- those EU regulations which do not apply under relevant Protocols, as detailed with reference to a list
- EU tertiary legislation which has been made under an exempt EU decision, regulation or a directive which does not apply to the UK under relevant Protocols,
Transitional Position Retention of existing EU law
The Withdrawal Act provides that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before exit but are decided on or after exit day are preserved. Exceptions also apply in relation to anything occurring before exit day as well as anything occurring after exit day. However, this is subject to the following specific transitional and saving provision and any specific saving and transitional provision made in regulations.
First, the exceptions for the Charter of Fundamental Rights, and for claims in respect of validity, general principles and Francovich do not apply in relation to cases which have already been decided before exit day.
Second, the exceptions to preserved and converted law for the Charter of Fundamental Rights and for general principles and Francovich claims will not apply in respect of proceedings which have begun before exit but are not decided until after exit.
Third, the exceptions for validity, general principles, and Francovich claims will not apply in relation to any criminal conduct which occurred prior to exit day
Fourth, the restriction on challenges based on incompatibility with any of the general principles of EU law does not apply in respect of certain proceedings begun within three years of exit day.Any challenge must relate to something that occurred before exit day and may be made against either administrative action or domestic legislation other than Acts of Parliament or rules of law. Courts, tribunals and other public authorities will be able to disapply legislation or quash conduct in the event of a successful challenge.
A court, tribunal or other public authority will, on or after exit day, still be able to disapply any enactment or rule of law, or quash any conduct on the basis of incompatibility with the general principles where it is a necessary consequence of a decision made by a court or tribunal before exit day, or decisions in proceedings commenced during the three year period after exit day.
This saves the effect of case law decided before exit day or during the transitional period in which the courts have disapplied a provision of pre-exit legislation on the grounds that it is incompatible with one of the general principles of EU law.
The Act will not prevent individuals from continuing to seek such damages in domestic law where a breach of EU law occurred before exit day.This Article draws on UK Parliamentary material. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).