The Brexit negotiations raise a myriad of challenges for the constitutional system of the United Kingdom. This study focuses its attention on those that have appeared in the first phase: the constitutionality of the UK’s notice of withdrawal (under art. 50 TEU) and how it has affected the relationship between parliamentary sovereignty and the exercise of prerogative powers; the contents of the EU Withdrawal Bill and its possible extension of government law-making without parliamentary scrutiny as well as its implications for the devolved governments; and, lastly, the sensitive issue of the border of Northern Ireland with the South.
La negociación de
Les négotiations du Brexit soulèvent une myriade de défis pour le système constitutionnel du Royaume-Uni. Cette étude s’intéresse à ceux qui sont apparus pendant la première phase: la constitutionnalité de l’avis de retrait du Royaume-Uni (au titre de l’art. 50 TUE) et ses effets sur la relation entre la souveraineté parlementaire et l’exercice des pouvoirs de prérogative; le contenu du projet de loi sur le retrait de l’UE et de son extension possible des pouvoirs législatifs du gouvernement sans contrôle parlementaire, ainsi que ses implications pour les gouvernements décentralisés; et, enfin, la question sensible de la frontière entre l’Irlande du Nord et la République d’Irlande.
On 15 December 2017, the European Council finally decided that “sufficient progress” with the United Kingdom had been made in the first phase of the Brexit negotiations to warrant the start of the second (
The aim of this study then is to dispel a little of the customary “fog” that surrounds the problems already encountered in the United Kingdom that may be of a broader, comparative interest: Section II of this study deals with the issues surrounding the notification of withdrawal, especially the UK Supreme Court’s decision in the
Any EU Member State is at liberty under art. 50(1) TEU to decide to withdraw from the Union “in accordance with its own constitutional requirements” (
Within the novel UK context, the decision of the British electorate in the 23 June 2016 referendum (
Compliance with art. 50 TEU therefore required additional input from the British side (
The relevance of the issue of the prerogative powers has to be viewed against a backdrop of the notion of parliamentary sovereignty within the UK system and the domestic impact of EU law. Indeed the strength of feeling of those Brexiteers who wished to “throw off the shackles of the EU” in order to regain the UK’s independence, especially its ability to frame its own laws, was one of the main issues of the 2016 referendum campaign.
The vote on EU membership by the UK and Gibraltarian electorate represented an expression of popular sovereignty. Unless arguably in respect of Scotland (
In the United Kingdom, the doctrine that parliament is sovereign has been regarded as one of the fundamental principles of the unwritten constitution since it was laid down by the great constitutional jurists of the nineteenth century. The traditional concept of parliamentary sovereignty, in the eyes of the positive theory of law as expounded by Dicey, meant that there were no legal limitations upon the legislative competence of parliament and thus guaranteed the legal supremacy of statute (
The sovereignty of parliament in this respect was reaffirmed judicially by the England and Wales Court of Appeal in
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute… It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.
He noted rather that
Did EU membership alter the doctrine of parliamentary sovereignty? Some academics sought to evolve a new understanding of parliamentary sovereignty within the EU context (
Due to the dualist nature of the British constitution with respect to international treaty law, the European Communities Act 1972
EU law has legal effect in the UK by operation of section 2(1) of the ECA. Moreover, the principles of supremacy and direct effect of EU law are imported into the domestic system by means of section 2(4) of the ECA which, somewhat opaquely, provides in part: “any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section”.
Until the 1990s, it was considered by the courts that section 2(4) laid down a very strong rule of construction that parliament was to be presumed not to intend any future statute to override EU law. In
In construing our statute, we are entitled to look to the Treaty as an aid to its construction: and even more, not only as an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient — or inconsistent with Community law — by some oversight of our draftsmen — then it is our bounden duty to give priority to Community law. Such is the result of section 2(1) and (4) of the European Communities Act 1972.
In contrast, in 1991, Lord Bridge sought to solve the priority problem through a disapplication approach in
Yet it could also be argued that the court had disapplied the domestic statute because the ECA had told it to do so. Without the ECA, EU law would not have been law in the UK and would not therefore have been able to enjoy primacy over conflicting national law. These things could only occur in the UK system because the British parliament had willed it to happen by means of the ECA. So the law lords did not act in right of EU law as a new rule of recognition (i.e., the fundamental rule by reference to which all other rules are validated) or of any higher principle when setting aside the Merchant Shipping Act: they were ultimately obeying parliament’s self-denying ordinance.
Moreover, there is no suggestion in the ECA that there has been any attempt on the part of the legislature to entrench all or any of its provisions, to protect them against repeal by a future Act of Parliament. The ECA therefore proceeded on the basis of the legal sovereignty of parliament and is expressive of and subject to such principle of sovereignty. It had been enacted but there was no fetter on parliament which could still amend or repeal it. Such point was confirmed by section 18 of the European Union Act 2011
And what would the courts do where the UK parliament was to provide expressly in an Act of Parliament that such statute was to apply over an inconsistent EU law? According to case-law before
They thereby seemed to suggest that the transfer of sovereignty was not complete even within the framework of EU membership (
The modern royal prerogative (
Prerogative powers exist by tradition and custom rather than in any official code (
Despite Dicey’s assertion (
In order to help clarify matters, Craig has outlined (
Does a prerogative power exist? Usually this is not a problem (as mentioned above, such a power exists in relation to foreign affairs and the making of treaties). In any event, the court needs to determine whether or not a prerogative exists in the light of the existing historical evidence. When doing so the court may delineate or define more specifically the subject matter area in relation to which the prerogative exists;
What is the extent of the prerogative? Again it is for the court to determine the types of limits or constraint it believes should, as a matter of principle, be placed on prerogative power, in the light of existing statutory provisions. In this work, the courts have found certain constraints on the prerogative, e.g., that it cannot alter the law of the land or affect rights
How is the prerogative exercised? The House of Lords in the
In view of the uncertainty of the use of prerogative to secure withdrawal under art. 50 TEU, private citizens brought an action before the Divisional Court (Queen’s Bench Division) of the High Court of England and Wales seeking determination of the matter
The claimants submitted
The court (Lord Thomas LCJ, Sir Terence Etherton MR and Sales LJ) declared
In
Of course, consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs [i.e., the application of the principle of primacy of EU law] will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the so-called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal.
In respect of parliamentary sovereignty and the clear foundations of EU law in the UK legal system, Lord Neuberger subsequently said
Lord Neuberger continued by noting that, because EU law had primacy by operation of the ECA, domestic legislation which was inconsistent with EU law was to that extent ineffective in law
This approach (
The issue in the case concerned two conflicting notions at the centre of the British constitution, as stated in
In
The first
The second category
In considering the application of these two categories to the present case, the British government was proposing by prerogative to withdraw from the EU and it was clear that such withdrawal would have the effect not only of taking away important rights but also of dismantling an entire source of law (
Since it was clear that such opportunities for uplift would be lost after Brexit, with the probability of a divergence between EU law and UK EU- derived law after Brexit, the majority in
Upon the United Kingdom’s withdrawal from the European Union, EU law will cease to be a source of domestic law for the future (even if the Great Repeal Bill provides that some legal rules derived from it should remain in force or continue to apply to accrued rights and liabilities), decisions of the Court of Justice will (again depending on the precise terms of the Great Repeal Bill) be of no more than persuasive authority, and there will be no further references to that court from UK courts. Even those legal rules derived from EU law and transposed into UK law by domestic legislation will have a different status. They will no longer be paramount, but will be open to domestic repeal or amendment in ways that may be inconsistent with EU law.
Following on from the above, Lord Neuberger concluded the majority’s argument against the government’s use of the prerogative to leave the EU (and thus without parliamentary approval to do so)
While the consequential loss of a source of law is a fundamental legal change which justifies the conclusion that prerogative powers cannot be invoked to withdraw from the EU Treaties, the Divisional Court was also right to hold that changes in domestic rights acquired through that source […] represent another, albeit related, ground for justifying that conclusion. Indeed, the consequences of withdrawal go further than affecting rights acquired pursuant to section 2 of the 1972 Act […]. More centrally […] section 2 of that Act envisages domestic law, and therefore rights of UK citizens, changing as EU law varies, but it does not envisage those rights changing as a result of ministers unilaterally deciding that the United Kingdom should withdraw from the EU Treaties.
The British government could not accordingly use the prerogative to withdraw from the EU since such withdrawal would change the law both because it would involve loss of a source of law and because of the impact on rights. In this situation, the majority of the Supreme Court dismissed the appeal and thus determined that the UK parliament would have to give prior approval to the British government’s notification to withdraw from the EU. This prior approval was subsequently given through statute and so, pursuant to the European Union (Notification of Withdrawal) Act 2017,
Having gone through this process of notification, one further issue needs to be considered: in the case that the UK were to change its mind (e.g., after a general election, or a referendum on the results of the negotiations were voted down) (
The point is still moot at this time (
In these proceedings, it is common ground that
A further attempt in the matter — this time for judicial review on the issue of the unilateral revocability of art. 50 TEU — was made by a group of members of the Scottish and European parliaments before the Outer House of the Court of Session in Edinburgh. Lord Doherty, in his Opinion in
Despite such judicial opinion, the European institutions have also entered into the debate, emphasising that while the notification is revocable, such revocation could not be unilateral. The European Parliament has posited that a hypothetical revocation should be some form of multilateral act and include conditions set by the remaining Member States (
The nature and position of EU law in the British constitutional system has already been discussed in relation to parliamentary sovereignty (section II.2.1 above). In this section, consideration will shortly be made to the radical new way that the UK Supreme Court in
The previously regarded conceptualisation of EU law, stemming from Lord Denning in
But in a more fundamental sense and, we consider, a more realistic sense, where EU law applies in the United Kingdom, it is the EU institutions which are the relevant source of that law. The legislative institutions of the EU can create or abrogate rules of law which will then apply domestically, without the specific sanction of any UK institution… So long as that Act remains in force, the EU Treaties, EU legislation and the interpretations placed on these instruments by the Court of Justice are direct sources of UK law.
Thus the validity of EU law did not originate from the ECA (
The European Union (Withdrawal) Bill (“the Withdrawal Bill”) was published on 13 July 2017
By the time the Withdrawal Bill came before the House of Lords on 18 January 2018, the upper chamber had already indicated that the Bill as drafted was “constitutionally unacceptable” and promised to undertake to make amendments to it (
While the 2016 referendum for those advocating departure from the Union was all about “taking back control” of law-making from the EU, little thought seems to have been paid to the realities of the situation of withdrawing from the Union, without having addressed the enormous legal gaps that could open up were EU law to lose its force on Brexit.
As the reverse process of enlargement that sees the adoption of the Union’s
It therefore becomes necessary to ensure that EU law in some way remains in effect after Brexit: legal certainty and continuity underlie any attempt to ensure the smooth and orderly transition (or return) to a sovereign domestic legal order. The need for such provision is one with which the UK is familiar throughout its decolonisation process where, in order to avoid a vacuum pending the creation of legal rules by the new (post-independence) legislature, laws in existence at the time of independence were “saved” in the UK statute granting the colonial territory independence (
The Bill creates a new category of domestic law called “retained EU law”
EU-derived domestic legislation
EU direct legislation
Retained case law
Retained general principles of EU law: covering all such principles as they have effect in EU law before Brexit. However
Despite the desire to ensure continuity, the Withdrawal Act will necessarily seek to remove certain laws and principles from UK law on Brexit day. Such matters that will not be saved or incorporated into the domestic legal system include:
The principle of the supremacy of EU law
The Charter of Fundamental Rights: this ceases to be part of domestic law post Brexit. But this does not affect the post-Brexit retention in domestic law of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case-law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles). This means that the CJEU’s case-by-case creation of a catalogue of fundamental rights will be retained as will its use of rights under the European Convention of Human Rights, European Social Charter, International Labour Organization Conventions, etc.
Challenging the validity of EU retained legislation
Francovich
Lastly, while the Bill provides for a means to retain, for the time being, the corpus of EU law which applies to the UK pre-Brexit, domestic courts will, when interpreting retained EU law post-Brexit, no longer be bound by any CJEU rulings or principles laid down by it nor will they have the right to refer any matter to the CJEU under art. 267 TFEU
In this respect, Lord Neuberger (interviewed before his retirement as President of the UK Supreme Court in 2017) had already indicated in respect of post-Brexit rulings of the CJEU (
One important issue that has arisen already in the process of debating the Withdrawal Bill in the House of Commons and will be subject to much discussion in the House of Lords (
Henry VIII clauses take their name from the Statute of Proclamations 1539
The delegated powers proposed under the Withdrawal Bill are very wide-reaching in nature. The main government justification for such an extensive grant of delegated legislative powers stems directly from the enormous body of the
Although many changes would be technical in character, the delegated powers would enable the government to make substantive policy changes to retained EU law, e.g., by replacing redundant law with new rules and standards
In this context, the House of Lords has already indicated its concerns in this respect (
This would require the government to give explanations for the use of the power which could then be scrutinised by parliament and would additionally provide a meaningful benchmark against which such use of the power might be tested before the courts.
Since the late 1990s, devolution has transformed the way in which the UK is run. Devolution essentially means the decentralisation of government and transfer of more powers from the central British parliament to the three devolved nations of Scotland, Wales and Northern Ireland. Confirmation of this new settlement was made through plebiscites in 1997 in Scotland and Wales, and in 1998 in the island of Ireland (including the Republic): this resulted in the creation of the Scottish parliament and assemblies for Wales and Northern Ireland (
The main powers devolved commonly to the three nations include agriculture, education, environment and health while law-making powers in other sectors have also been devolved to one or other nation. The British government ultimately remains responsible for national policy on all powers that have not been devolved and these include foreign affairs, defence, international relations, international treaties, currency, nationality, immigration and economic policy. The British parliament is technically still able to pass laws for any part of the UK but in practice only deals with devolved matters with the agreement of the devolved governments (Sewell Convention, see below in section IV.4).
Without a doubt, Brexit will impact on the devolution settlement and may lead to some “rough weather” in political terms. This situation is further complicated by the fact that in the 2016 referendum (
Relations between the British government and those of the three devolved nations is governed by the Memorandum of Understanding (reissued in 2013), according to which a Joint Ministerial Committee (JMC) was established to provide “central co-ordination” of relations between the four governments (
The terms of reference of the JMC (EN) (
The first test of the relative power of the three devolved nations came in the
On the devolution issues, the Supreme Court unanimously held that the NIA did not require primary legislation or the aforementioned consent before the UK government could notify its withdrawal from the EU. According to Lord Neuberger
In this case, then, the Supreme Court reaffirmed the position that the British government and parliament alone were able to submit the notification for withdrawal from the EU without the agreement of the devolved nations.
However, this is not the end of the matter as the UK will not be able to ignore the three nations when it comes to seeking to pass the Withdrawal Bill. The severity of a potential crisis stems in part from the fact that EU law was incorporated directly into the devolution statutes in Scotland
In practical terms, this may not amount to much of a change with what currently happens. Yet the basis of the restrictions, in constitutional terms, will be altered: while they are now based on the fact that the three devolved legislatures are all part of an EU Member State, the Withdrawal Bill provides that, post-Brexit, the restrictions would rather only be based on a British statute.
Without this change in the Withdrawal Bill, once the UK were no longer a Member State, the devolved legislatures would be able to legislate in areas currently covered by EU law that were within their devolved competence, such as agriculture or the environment. Seen in this way, the Bill effectively re-reserves to the UK parliament these areas of competence, within competences that have otherwise been devolved and without any guarantee that the British parliament will actually devolve them once more to the three nations. Thus Scotland, Wales and Northern Ireland are conscious of the potential loss of law-making under a disguised repatriation to the UK parliament of legislative powers from the EU which are then not passed back on to the devolved nations’ assemblies.
Consequently, although the UK parliament will repeal the ECA, such repeal will not terminate the domestic incorporation of EU law in the devolved nations. It will still be necessary to have the agreement of each devolved legislature to amend the relevant parts of their own foundational devolution legislation at the same time.
And such agreement from the devolved legislatures would be absolutely essential since, although the UK parliament can still amend those three devolution Acts, the British government has stated (under the so-called the Sewel Convention
The Sewel Convention was adopted as a means of establishing co- operative relationships between the British parliament and the devolved institutions. As a convention (
Under the terms of the Sewel Convention, then, all Brexit-related amendments to the devolved legislation will thus require a legislative consent motion to be passed by the Scottish parliament, the Welsh assembly or the Northern Ireland assembly, in which the relevant devolved legislature agrees that the British parliament may pass legislation on a devolved issue over which the devolved body has regular legislative authority.
However, the heads of two of the devolved governments announced their intention not to grant such consent motions (
The
The First Ministers of Scotland and Wales have recently adopted a different tactic (
The consequences of Brexit will therefore require the agreement of the three devolved legislatures in their field of competences: failure to achieve this would not necessarily halt legal preparations for Brexit as it remains constitutionally and legally possible for the British parliament to override the devolved legislatures
The putative impact on the island of Ireland of the UK’s exit from the EU is serious and has the very real potential to undermine the very basis of the Northern Irish peace process, bringing into question the viability of devolved government there with all its attendant consequences (
The introduction, post-Brexit, of a hard (international/EU external) border running through the island of Ireland would be quite unprecedented for the island as a whole, at least in recent times.
Although Ireland separated from the UK in the 1920s, it nonetheless enjoys a rather unique relationship with its much larger neighbour. Section 2(1) of the Ireland Act 1949
Moreover, except for a period during and in the years after the Second World War, neither Ireland nor the UK has placed restrictions on travel between each other for citizens resident in each other’s states since Irish independence. Together with the Crown Dependencies of the Channel Islands and the Isle of Man, they form the Common Travel Area (CTA) (
Originally initiated in 1923 on Irish independence, the CTA was reconfirmed in a revised version in 1952. In 2011, the first public agreement between the British and Irish governments (
What then will happen to the CTA between the two islands when the UK exits the EU? The 2015 Report of the Irish Parliamentary Joint Committee considered that the provisions of the Protocol exempting both states from applying Schengen “appear to imply that if the UK was no longer a member state of the EU, the Protocol would become redundant and by extension, the legal basis in EU law for the CTA would be questionable. This will have implications for both countries, notwithstanding their intentions” (
While free passage of people between north and south of the island has been the norm since 1923, free movement of goods dates back more recently to 1993 with the coming into force of the single market of the EU and the removal of physical customs controls between Member States. Although the Anglo-Irish Free Trade Agreement 1965 had provided for reduction and elimination of import duties on industrial and some agricultural products (
The amount of trade between the UK (especially Northern Ireland) and Ireland and its importance for the economies on both sides of the border cannot be understated. In this respect, the then heads of the Northern Ireland Executive, the then First Minister of Northern Ireland, Democratic Unionist Party (DUP) Leader Arlene Foster, and the then deputy First Minister, Martin McGuinness of Sinn Féin (Irish nationalist party) had already sent a joint letter (
The discussion of the impact of Brexit on the Irish border question assumed even more importance when British Prime Minister May announced in her Lancaster House speech, in January 2017 (
Promoting the position of Northern Ireland during the Brexit negotiations has become even more complicated since its Executive collapsed in early 2017, due to internal political difficulties, and by the fact that, following Prime Minister May’s loss of an absolute majority in the June 2017 general election, the minority Conservative government has been kept in power by DUP members of the Westminster parliament.
The importance of the EU in the evolution of relations between the UK and the Ireland has been invaluable. Common EU membership has facilitated the development of improved relations between the two States, as they worked together to resolve the conflict in Northern Ireland.
The product of that resolution is the Belfast (Good Friday) Agreement (
Without firm guarantees from the UK and the EU-27, Brexit might lead to an unravelling of the Belfast Agreement and undo much of what has been achieved in the last two decades in UK-Irish relations, undermining the operation of the relevant institutions established under the Agreement. While some have noted that the Agreement will merely need to be purged of references to the EU which will become redundant (
Considering the above, what solutions have been proposed? Both the UK and the EU affirmed at the end of the first phase of Brexit negotiations
The UK for its part recalled its commitments
Any future arrangements would have to be compatible with these overarching requirements. However, the UK agreed that, in the absence of agreed solutions, it would
Lastly, the CTA would continue to operate without affecting Ireland’s obligations under EU law, in particular with respect to free movement for EU citizens; the birthright of the people of Northern Ireland (enshrined in the 1998 Agreement) to choose to be Irish or British or both and be accepted as such would be respected and those who were (also) Irish citizens would continue to enjoy rights as EU citizens, including where they resided in Northern Ireland; and the UK committed itself that no diminution of rights would be caused by Brexit, including in the area of protection against forms of discrimination enshrined in EU law and the related work of the institutions and bodies, under the 1998 Agreement, in upholding human rights and equality standards
Although the negotiating parties seemed to have reached an understanding on Northern Ireland, there is no clear explanation of how — in practical terms — they will square the circle of the UK’s leaving the customs union and the internal market while maintaining a soft external border between the North and the South of the island. Put simply, it could be argued that the maintenance of “full alignment” with the internal market and customs union of the EU and the need to ensure “no new regulatory barriers” to develop between Northern Ireland and the rest of the UK, might allow the North to act as some latter-day Trojan horse for “BINO,” i.e., Brexit In Name Only. It is hard to be able to conceive of the EU allowing such a situation to exist on internal trade even with possible examples of Andorra or San Marino, or even Ceuta and Melilla, as precedents of some sort.
This view has been recently confirmed by the EU in its Draft Withdrawal Agreement published at the end of February 2018 (
In effect, Northern Ireland would remain in the customs union
Prior warnings of the centrifugal constitutional forces that would be unleashed with a vote in favour of Brexit (
The idea of trying to “square the circle” of no hard border between the North and South of Ireland with the UK government’s red lines was always going to prove to be an improbable call, all the more so with its potential for undermining the real gains over the last 20 years or so with the Belfast Agreement in Northern Ireland. The irresolvability of the border issue might, in the long term, give rise to two conflicting scenarios: on the one hand, by aligning its trade more closely with the south of the island, the province’s continuing status within the UK could start to be called into question and ultimately promote calls for a referendum to unite with the Republic; on the other hand, it could prove to be the main justification for the UK to reclaim EU membership as argued by Belgian MEP Philippe Lamberts. If at least part of the UK (Northern Ireland) is bound to be kept in the customs union and (partially) single market because of the Belfast Agreement, the choice becomes stark: either the UK renounces the Agreement and then leaves the single market and customs union or it remains inside (or rejoins) the EU (
Even absent the issue of Northern Ireland, the Brexit process has already thrown up a range of other constitutional problems: in
In this respect, the First Minister has previously set out principles upon which Scotland would support the Brexit withdrawal agreement: the basic position of the SNP and most members of the Scottish parliament are for the UK to remain in the customs union and the single market (
Another attempted “power grab” is also being challenged, this time in the UK parliament. The British government’s determination to use “Henry VIII clauses,” in order to oust parliamentary scrutiny from large areas of the Brexit process represents for many parliamentarians a covert bid by the executive for an unconstitutional assumption of power at their expense. In the end, there will have to be a compromise: some parliamentary oversight, by means of each chamber’s Brexit committee acting as a co-ordinator, should be introduced so that “nationalising” retained EU law would not escape scrutiny and review by parliamentarians and thereby ensure the British government would be held to account.
Lastly, some further guidance for the courts in dealing with the issue of CJEU interpretations of retained EU law after Brexit, both during the proposed transition or implementation period and beyond. In this scenario, the Agreement on the European Economic Area (EEA) provides an interesting example of maintaining legal homogeneity between the EU and the EFTA EEA states of Iceland, Liechtenstein and Norway. According to the Agreement
Facultad de Derecho, Universidad CEU San Pablo. The author would like to thank the two anonymous reviewers for their helpful and incisive comments. The usual disclaimer applies. The legal situation stated as of 9 March 2018.
Political Parties, Elections and Referendums Act 2000, c. 41, sections 101-192, in particular.
European Referendum Act 2015, c. 36.
Parliamentary Voting System and Constituencies Act 2011, c. 1, section 8.
For example, Lord Reid in the House of Lords case,
European Communities Act 1972, c. 68.
European Union Act 2011, c. 12. Emphasis supplied.
Miller [2017] UKSC 5 [5].
Miller [2017] UKSC 5 [52].
European Union (Notification of Withdrawal) Act 2017, c. 9, section 1.
Judgement of the Court of 15 July 1964 Case 6/64 Flaminio Costa v. ENEL, 6/64, EU:C:1964:66, 594.
European Union (Withdrawal) Bill, version before the House of Lords, 18-1-2018: Retrieved from:
Withdrawal Bill, clause 1.
The Withdrawal Bill’s impact on the law-making powers of the devolved nations will be considered in section IV.4 below.
While there is no single figure for how much EU law already forms part of UK law (and how much will therefore be converted by the Withdrawal Bill), according to EUR-Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force. In addition, there have been around 7,900 UK statutory instruments that have implemented EU legislation and, out of 1,302 UK Acts between 1980 and 2009 (excluding those later repealed), 186 Acts (or 14.3 %) exhibited a degree of EU influence (Department for Exiting the European Union,
Withdrawal Bill, clause 14(1): thus, for most of the EU-27, 12.00 midnight CET on the same day.
Withdrawal Bill, clause 6(7).
Withdrawal Bill, clause 2.
Withdrawal Bill, clause 3.
Withdrawal Bill, clause 6(7)
Withdrawal Bill, Schedule 1, paragraph 3.
Withdrawal Bill, clause 5.
Withdrawal Bill, Schedule 1, paragraph 1.
Withdrawal Bill, Schedule 1, paragraph 4.
Withdrawal Bill, clause 6(1).
Withdrawal Bill, clause 6(2).
31 Hen. VIII, c. 8.
Withdrawal Bill, clause 7(1)(a).
Withdrawal Bill, clause 7(1)(b) and (2)-(5).
Withdrawal Bill, clause 7(2)(a)
Withdrawal Bill, clause 7(2)(b)-(e) and (6).
Northern Ireland Act 1998, c. 47.
Section 29(2)(d) of the Scotland Act 1998, c. 46, provides that Acts of the Scottish Parliament that are incompatible with EU law are “not law.”
Section 108(6) Government of Wales Act 2006, c. 32, states that any act of the Welsh Assembly incompatible with EU law, falls outside its competence.
Section 24 of the Northern Ireland Act 1998, c. 47, prohibits any legislation contrary to EU law.
Withdrawal Bill, clause 11.
The Sewel Convention is named after Lord Sewel, who was the Scotland Office Minister in the House of Lords responsible for the conduct through that House of the bill that later became the Scotland Act 1998. During the second reading debate, he said: “As happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”. See HL Debates, volume no. 592, part no. 191, 21 July 1998, column 791.
Regardless of this, the judiciary have acknowledged conventions in a court of law:
Scotland Act 2016, c. 11, section 2 inserted sub-section (8) into section 28 of the Scotland Act 1998, c. 46; and Wales Act 2017, c. 4, section 2 inserted sub-section (6) into section 107 of the Government of Wales Act 2006, c. 32.
Section 5 of the NIA empowers the Northern Ireland Assembly to make laws, but subsection (6) states that: “This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland”. Section 28(7) of the Scotland Act 1998 provides that the section empowering the Scottish Parliament to make laws “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”. A substantially identical provision is made for Wales in section 107(5) of the Government of Wales Act 2006.
Ireland Act 1949, 12, 13 & 14 Geo. VI, c. 41.
Art. 2 of Protocol No. 20 to the Treaty on European Union and the Treaty on the Functioning of the European Union.
The institutions created between Northern Ireland and the Republic of Ireland are the North/South Ministerial Council, the North/South Inter-Parliamentary Association and the North/South Consultative Forum; while the institutions created between the islands of Ireland and Great Britain (as well the Crown Dependencies) are the British-Irish Intergovernmental Conference, the British-Irish Council and an expanded British-Irish Interparliamentary Body.
Art. 4(2) of the Protocol on Ireland/Northern Ireland to the Draft Withdrawal Agreement.
Agreement on the European Economic Area of 2 May 1992 (OJ L 1, 30 January 1994, p. 3), art. 6; read with Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice of 2 May 1992 (OJ L 344, 31 January 1994, p. 3), art. 3(2).
Case E-4/01
Case E-4/04