How Does EU Law Apply In The UK After Brexit?

Author:Mr Kieran Laird
Profession:Gowling WLG
 
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BACKGROUND

BEFORE BREXIT, EU LAW TOOK EFFECT IN THE UK THROUGH THE EUROPEAN COMMUNITIES ACT 1972 (THE ECA 1972).

This was intended to give effect to the UK's obligations as a Member State under the relevant EU treaties to comply with EU law.

Under section 2(1) of the ECA 1972, certain types of EU rights and obligations, which are intended to be directly effective, were given effect in the UK without the need for any further domestic legislation. This included rights in the EU treaties as well as EU regulations which contain detailed legal rules.

Other types of EU law were given effect through UK regulations made under section 2(2), or in some cases through separate Acts of Parliament. This included EU directives which set out broad outcomes or frameworks but which leave it to each Member State to make its own provision to achieve the required legal effect.

In terms of its application, EU law is 'supreme'. This means that where there was a conflict between EU law and UK domestic legislation, the latter could be disapplied - a principle which provided the only circumstance in which a UK court can disapply an Act of Parliament.

UK judges were also bound to follow decisions by the Court of Justice of the EU (CJEU) under section 3(1) of the 1972 Act.

Over the last 40 or so years, EU law has come to form a large part of the law which applies in the UK, covering a range of different issues. The UK has therefore not needed to – and indeed could not – formulate its own domestic laws in relation to such issues where EU law applied directly. Nor could it take a different approach to areas covered by EU Directives which required a particular approach to be taken in domestic legislation.

As of the point of its exit from the EU, the UK is no longer be subject to the EU treaties as it will no longer be an EU Member State. Directly applicable EU law will no longer apply to the UK under the EU treaties, nor will it be required by those treaties to ensure that domestic legislation meets the requirements set out in EU Directives.

Instead, the UK's relationship with the EU is now governed by the Withdrawal Agreement, a new international treaty negotiated by the UK and the EU under Article 50 of the Treaty on European Union. The Withdrawal Agreement is intended to –

tie up the administrative and financial loose ends from the UK's membership of the EU, protect UK and EU citizens living in each other's territory, and provide a stand-still period in relation to...

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