Interpretation of retained EU law
The Withdrawal Act sets out how retained EU law is to be read and interpreted on and after exit day.
- decisions of the CJEU made after exit day will not be binding on domestic (UK) courts and tribunals;
- domestic courts cannot refer cases to the CJEU on or after exit day; and
- domestic courts and tribunals are able to have regard to actions of the EU taken post-exit,including CJEU decisions, where they are relevant to any matter the court or tribunal is considering . This ability is, however, limited by the other provisions in this section – so, for example, although a court may have regard to post-exit CJEU decisions, it cannot have regard to such an extent it considers itself bound by them
The Act provides that any question as to the meaning of unmodified retained EU law will be determined in UK courts in accordance with relevant pre-exit CJEU case law and general principles.
This means, for example, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant materials such as the treaty legal base for a measure, its recitals and preambles, and the travaux preparatoires (working papers) leading to the adoption of the measure).
It also means applying an interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law. Non-binding instruments, such as recommendations and opinions, would still be available to a court to assist with interpretation of retained EU law after exit.
UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU. Article 5(2) TEU confirms that the Union could only act within the limits of the competences conferred upon it by the member states. Competences not conferred upon the Union remain with the member states.
The Withdrawal Act provides that unlike other courts, the UK Supreme Court (UKSC) and the High Court of Justiciary (HCJ) are not bound by either retained general principles or retained CJEU case law. The HCJ is the highest criminal court in Scotland from which there is no right of further appeal to the UKSC, except in respect of certain matters set out.
After exit day, retained CJEU case law will have the same binding, or precedent, status in domestic courts and tribunals as existing decisions of the UKSC or HCJ. This means that the UKSC (and, except where there is a further appeal to the UKSC, the HCJ) will be able to choose to depart from previous CJEU case law.
The Act provides that although all courts can have regard to post-exit CJEU decisions, unless and until the UKSC or HCJ have departed from pre-exit CJEU case law, the latter remains binding on lower courts even if the CJEU has departed from it after exit day.
In choosing whether to depart, the UKSC and the HCJ are required to apply the same tests as they would when considering whether to depart from their own previous decisions. The test the UKSC applies is set out in an existing practice statement which sets out that it may depart from previous decisions ‘where it appears right to do so’. The HCJ will apply its own tests in deciding whether or not to depart from inherited CJEU case law.
The Withdrawal Act sets out that retained EU law which has been amended on or after exit day can be determined in accordance with CJEU case law and the general principles where that accords with the intention of the amendments.
Status of retained EU law
The Withdrawal Act confirms that EU-derived domestic legislation which is saved by section 2 will continue as legislation of the same type as it was before exit day. It restricts the way in which retained EU law brought in by sections 3 and 4 can be amended by primary and subordinate legislation. In summary, it broadly provides that such law can be amended by:
- Acts or other primary legislation (such as an Act of the National Assembly for Wales);
- powers to make subordinate legislation which explicitly or implicitly provide that they may amend such law; and
- powers to make subordinate legislation which may amend such law by virtue of the Withdrawal Act.
Questions as to the meaning of EU instruments
Generally, the meaning or effect of the law in other jurisdictions is treated as a question of fact, to be proved in legal proceedings by evidence, rather than determined by a judge as a question of law. Section 3 of the ECA clarified that, when the UK joined the EU, UK judges were to determine the meaning or effect of the EU Treaties, or the validity, meaning or effect of any EU instrument, as a question of law, in accordance with the principles laid down by and relevant decisions of the CJEU.
The EU law which is being retained by the Act will become domestic law, and so fall to be interpreted by judges in this country. Some EU law will not become part of domestic law, but may still be relevant to the interpretation of the retained EU law (for example, a court may have to consider the meaning of an EU directive when interpreting domestic regulations made to implement that directive).
The Withdrawal Act makes clear that, to the extent that determining the meaning or effect of EU law is necessary for a court to interpret retained EU law, judges will continue to determine that meaning or effect themselves as a question of law, rather than treat it as a question of fact.
Matters which are ‘judicially noticed’ are deemed to already be within the knowledge of the court, and so are not required to be ‘proved’ to the court. The Withdrawal Act provides that a Minister of the Crown can make regulations which provide for judicial notice to be taken of a relevant matter, and for the admissibility in legal proceedings of evidence of both a relevant matter and instruments and documents issued by or in the custody of an EU entity, to ensure that appropriate evidential rules can be put in place to reflect the new legal landscape after exit.
Reports in connection with retained EU law restrictions
The Withdrawal Act imposes reporting duties on ministers of the Crown regarding the powers conferred by and matters related to common UK frameworks. A Minister of the Crown to lay a report before Parliament every three months from Royal Assent of the Act on:
- steps taken towards replacing the powers to limit devolved competence in relation to retained
- EU law, and any regulations made under them, with future arrangements;
- how the principles agreed by the UK, Scottish, and Welsh Governments (including at the Joint Ministerial Committee on EU Negotiations in October 2017)have been taken into account;
- regulations made under the powers to limit devolved competence in relation to retained EU law, or regulations made to repeal those powers;
- the progress that needs to be made before the remaining powers and regulations can be repealed or revoked; and
- any other information that the Minister considers to be appropriate to report.
The Withdrawal Act contains a series of amendments to the devolution legislation resulting from the UK leaving the EU. Specifically, it amends the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006.
The amendments deal with a variety of issues and how these need to be reflected in the devolution legislation, including the repeal of the ECA 1, the preservation and conversion of existing EU law into UK domestic law on and after exit day and the approach to legislative and executive competence taken
Publication of retained direct EU legislation etc.
To ensure that retained EU law is accessible after exit day, the Withdrawal Act confers various duties and powers on the Queen’s Printer. The Queen’s Printer is an office within The National Archives, responsible for the publication of legislation.
The Queen’s Printer is required to make arrangements to ensure each ‘relevant instrument’ which has been published before exit day, and ‘relevant international agreements’, are published in the UK. The Act defines which instruments and international agreements are classified as ‘relevant’. This covers the EU instruments which could (subject to the application of the Act) have effect in UK law after exit day as retained direct EU legislation, and four of the main EU treaties. That something is published by the Queen’s Printer does not mean it is part of UK law after exit day.
The Withdrawal Act allows but does not require, the Queen’s Printer to publish any decision of or expression of opinion by the European Court, and any other document published by an EU entity.
The Queen’s Printer may publish anything else that the is considered useful in relation to the other documents published, for example ‘as amended’ versions of retained direct EU legislation which reflect changes made using the deficiencies powers in the Act, or guidance documents.
The Queen’s Printer is not required to publish anything which has been repealed before exit day or to publish any modifications made on or after exit day.
The Queen’s Printer does not have to publish instruments (including categories or specific parts of instruments) in respect of which they have received a direction from a Minister of the Crown stating that, in the opinion of that Minister, the instrument has not become (or will not become on exit day) retained direct EU legislation. Any direction must be published.
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).