The main aim of the Bill is to formally repeal the 1972 Act which allowed the United Kingdom to join the European Union, the European Communities Act 1972. The new Bill sets out to end the supremacy of European Union law over that made in the United Kingdom, it also formally adopts all previous European Union law into UK law, and ends the mechanism whereby all EU law automatically flows into UK law. Two associated functions of the Bill are to allow for secondary legislation to correct existing legislation and maintain the current scope of devolved decision-making powers in areas currently governed by EU law.
The question as to why retain any EU law at all is necessitated by the need to avoid a vacuum in current UK law. The removal of EU law at exit by the UK from the European Union would leave a chaotic void if left unaddressed. At exit it will be necessary to retain components of retained EU law for example EU-derived UK legislation, direct EU legislation, rights granted to the UK under previous Treaties, EU law upon which UK case law is based, the Courts of Justice of the European Union case law on retained EU law, and finally the general principles of EU law. This does not mean that all previous EU law will have the same standing in the UK courts after March 2019. It might be retained but on a reduced status to allow for the supremacy of UK law.
But what does the end of EU supremacy over UK law actually mean in practice? Absolute supremacy ends but not without qualification. Supremacy in its commonest form means the precedence to EU law over national law. It may be repealed if it conflicts with UK national law, and interpretation of domestic law to accord with EU law is no longer guaranteed in the UK courts.
At the same time absolute supremacy of EU law no longer applies to laws made in the UK after Brexit day. However supremacy continues to apply when questions arise post-exit about the interpretation of pre-exit laws. It would also apply to domestic legislation enacted after exit day to modify pre-exit day legislation if the application of the principle is consistent with the intention of the modification.
For the avoidance of doubt, retained EU regulations will take precedence over inconsistent pre-exit domestic legislation. The one overriding principle
is that the UK Parliament can now, in a post Brexit world, amend that body of law without the strictures and force of the supremacy of EU law. And this is a significant step.
Decisions made by the Court of Justice of the European Union (CJEU) are slightly different. A UK court or tribunal is not bound by any principles established by or decisions of the CJEU on or after exit day. After the UK’s exit from the EU, UK courts will no longer refer cases to the CJEU, although a UK court or tribunal may have regard to previous decisions of the European Court after Brexit if it considers it appropriate. This is due to the extent UK law is built on precedence which means that previous court decisions are taken into account in current or future decisions of the court.
UK law also requires that the court must interpret validity, meaning or effect of law in accordance with retained EU law to the extent that it has not been modified on or after the date of exit. The Supreme Court of the UK may depart from pre-exit CJEU principles and decisions on the same grounds that they could depart from their own precedents, if material facts in the case are different. Thus pre-exit CJEU case law has the same binding and precedent status on UK law as the Supreme Court’s decisions have on domestic cases. National courts, however, are not bound by any retained domestic case law that they would otherwise not be bound by.
The application of the current Bill on environmental law, which affects much regulation relating to matters of waste either hazardous or otherwise, is less clear. Within the terms of the current UK ‘EU (Notification of Withdrawal) Act 2017, there are no specific environmental provisions made in the Bill. No changes to environmental legislation are expected ahead of the date of exit from the EU, although the Department of the Environment, Food and Rural Affairs has signalled its intent to formally consult on plans to establish a new environmental regulator after the date of exit.
As it affects environmental law, there is already a body of law and regulations established over time that impact upon the environment. These include EU law that the UK wishes to retain and the origins of that law include EU regulations, EU directives, EU Treaty provisions and CJEU case law rulings.
Continued on page 46 LUBE MAGAZINE NO.143 FEBRUARY 2018 45
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