Retained EU law and the UK constitution - Parliamentary sovereignty and retained EU law

Learning Outcomes

This article explores the complex relationship between the principle of parliamentary sovereignty and the body of retained EU law existing in the UK legal system post-Brexit. It examines how the traditional understanding of parliamentary sovereignty has been impacted by EU membership and the subsequent withdrawal process. For the SQE1 assessments, you will need to understand the status and interpretation of retained EU law and its interaction with Acts of Parliament, particularly concerning the principle of supremacy. Your understanding will enable you to apply relevant legal rules to SQE1-style single best answer questions.

SQE1 Syllabus

For SQE1, you are required to understand the place of EU law in the UK constitution following the UK's exit from the EU. This involves appreciating the continuing relevance of certain EU legal principles and how retained EU law interacts with domestic legislation, particularly concerning parliamentary sovereignty. It is likely you will need to apply these principles to assess the validity and effect of laws in specific scenarios.

As you work through this article, remember to pay particular attention in your revision to:

• the sources and status of retained EU law
• the principle of parliamentary sovereignty and challenges posed by EU membership and retained EU law
• the interpretation of retained EU law by UK courts
• the relationship between retained EU law and Acts of Parliament passed before and after IP completion day
• the significance of key legislation like the European Union (Withdrawal) Act 2018.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which Act provided the primary legal basis for incorporating EU law into the UK legal system prior to Brexit?
   1. Human Rights Act 1998
   2. European Union (Withdrawal) Act 2018
   3. European Communities Act 1972
   4. Bill of Rights 1689
2. What is the general principle established in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) regarding the relationship between EU law and UK statutes during the UK's EU membership?
   1. UK statutes always prevail over conflicting EU law.
   2. EU law could be disapplied by UK courts if it conflicted with fundamental UK constitutional principles.
   3. UK courts had the power to suspend the application of UK statutes that conflicted with directly effective EU law.
   4. The European Court of Justice had no jurisdiction over UK statutes.
3. According to the European Union (Withdrawal) Act 2018, what is the status of the principle of supremacy of EU law in relation to UK laws made after IP completion day (31 December 2020)?
   1. Retained EU law continues to be supreme over all UK law.
   2. The principle of supremacy no longer applies to laws made after IP completion day.
   3. The principle of supremacy applies only if Parliament expressly states it should.
   4. Retained EU law is supreme only if it relates to fundamental rights.

Introduction

The relationship between the UK's constitutional basis, parliamentary sovereignty, and European Union (EU) law has been a central theme in UK public law, particularly following the UK's withdrawal from the EU ('Brexit'). Traditionally, parliamentary sovereignty means that the UK Parliament has the supreme legal authority to create or abolish any law. However, membership of the EU, facilitated by the European Communities Act 1972 (ECA 1972), introduced the principle of the supremacy of EU law over national law. Brexit necessitated a new legal framework, primarily established by the European Union (Withdrawal) Act 2018 (EU(WA) 2018), which repealed the ECA 1972 but preserved much EU law as 'retained EU law'. This article examines the interaction between retained EU law and parliamentary sovereignty in the post-Brexit context.

Parliamentary Sovereignty Before and During EU Membership

Key Term: parliamentary sovereignty The constitutional principle that the UK Parliament has the ultimate legal authority to make or unmake any law, and that no other body can override or set aside an Act of Parliament.

A.V. Dicey's classic formulation asserted Parliament's unlimited legislative competence. This included the power to legislate contrary to international law and the inability of one Parliament to bind its successors. However, joining the European Communities in 1973 challenged this view.

The European Communities Act 1972

The ECA 1972 provided the mechanism for EU law to have effect in the UK. Section 2(1) gave legal effect to directly applicable or directly effective EU law (like Treaty articles and Regulations) without further enactment. Section 2(4) required UK courts to interpret domestic legislation compatibly with EU law and, crucially, provided that EU law would take precedence over conflicting domestic statutes, whether passed before or after the ECA 1972.

Supremacy of EU Law: The Factortame Case

The principle of EU law supremacy was confirmed by the UK courts in the landmark case R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603. The House of Lords accepted that, by enacting the ECA 1972, Parliament had voluntarily accepted a limitation on its sovereignty for as long as the Act remained in force. UK courts were required to disapply provisions of an Act of Parliament (the Merchant Shipping Act 1988) that conflicted with directly effective EU law (regarding non-discrimination and freedom of establishment). This demonstrated that, during membership, EU law could override Acts of Parliament.

Constitutional Statutes

Some judicial thinking suggested certain 'constitutional statutes', like the ECA 1972, could only be repealed expressly, not impliedly (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)). This implied a hierarchy of statutes, potentially limiting absolute parliamentary sovereignty, though the dominant view remained that Parliament could expressly repeal any Act, including constitutional ones.

Retained EU Law and Sovereignty Post-Brexit

The EU(WA) 2018 aimed to provide legal continuity after Brexit by preserving EU law as it stood immediately before 'IP completion day' (11 pm on 31 December 2020) and converting it into a new category of domestic law: retained EU law.

Key Term: retained EU law A body of law created by the EU(WA) 2018, consisting primarily of EU-derived domestic legislation, direct EU legislation, and certain rights and principles from EU law that applied in the UK immediately before IP completion day.

Types of Retained EU Law

• EU-derived domestic legislation (s 2 EU(WA) 2018): UK legislation (mostly secondary, but some primary) created to implement EU obligations (e.g., Directives). This continues to have effect as UK law with the same status (primary or secondary) it had before.
• Direct EU legislation (s 3 EU(WA) 2018): EU legislation that had direct effect in the UK without needing specific UK implementation (e.g., EU Regulations). This became a new type of UK domestic law.
• Rights, powers, liabilities etc. under s 2(1) ECA 1972 (s 4 EU(WA) 2018): This preserves rights derived from EU law, mainly directly effective Treaty provisions, that were recognised before IP completion day.

The End of General EU Law Supremacy

Section 5(1) EU(WA) 2018 states that the principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after IP completion day. This asserts the restoration of parliamentary sovereignty concerning new legislation.

Limited Supremacy of Retained EU Law

However, s 5(2) EU(WA) 2018 provides that the principle of supremacy does continue to apply to enactments or rules of law passed or made before IP completion day. This means:

• If a conflict arises between a piece of retained EU law and a pre-IP completion day UK enactment (that is not itself retained EU law), the retained EU law takes precedence.
• This is a significant qualification to the immediate restoration of full parliamentary sovereignty, preserving the pre-Brexit legal hierarchy for existing laws unless Parliament legislates otherwise post-Brexit.

Worked Example 1.1

A UK Act of Parliament passed in 2015 contains provisions regarding working hours. An EU Regulation on working hours, dating from 2010, contains conflicting provisions. Both the Act and the Regulation applied in the UK immediately before 11 pm on 31 December 2020. A dispute arises in 2022 concerning working hours governed by these provisions. Which law prevails?

Answer: The EU Regulation became retained EU law under s 3 EU(WA) 2018. The UK Act was passed before IP completion day. Section 5(2) EU(WA) 2018 provides that the principle of supremacy continues to apply to laws made before IP completion day. Therefore, the retained EU Regulation prevails over the conflicting provisions of the 2015 UK Act.

Worked Example 1.2

Assume the same facts as Worked Example 1.1, but Parliament passes a new Act in 2023 that explicitly alters the working hours rules previously governed by the retained EU Regulation. Which law now prevails regarding conduct after the 2023 Act comes into force?

Answer: Section 5(1) EU(WA) 2018 states the principle of supremacy does not apply to laws made after IP completion day. The 2023 Act was passed after IP completion day. Therefore, the 2023 Act prevails over the conflicting retained EU Regulation, demonstrating the restoration of parliamentary sovereignty in relation to new legislation.

Modification and Interpretation of Retained EU Law

• Interpretation (s 6 EU(WA) 2018): UK courts are generally not bound by CJEU decisions made after IP completion day but may 'have regard' to them. Pre-IP completion day CJEU case law (retained EU case law) is binding on lower courts, but the Supreme Court and Court of Appeal can depart from it using the same test they apply to departing from their own precedents. Retained general principles of EU law (e.g., proportionality) can also be used to interpret retained EU law, but only if recognised pre-IP completion day, and they do not create new causes of action.
• Modification Powers: EU(WA) 2018 (s 8) granted ministers powers (now largely expired) to make secondary legislation to correct 'deficiencies' in retained EU law arising from withdrawal. The Retained EU Law (Revocation and Reform) Act 2023 now provides broader powers for ministers to amend, repeal, or replace retained EU law by statutory instrument, and includes a 'sunset' provision ending the special status of much retained EU law at the end of 2023 unless preserved. These powers raise constitutional questions about executive dominance over legislation previously subject to parliamentary or EU scrutiny.

Constitutional Implications

While Brexit legally restored Parliament's ultimate authority to legislate contrary to EU-derived norms, the existence of a large body of retained EU law, coupled with specific provisions preserving aspects of supremacy for pre-existing laws and executive powers to modify retained law, means the practical context of parliamentary sovereignty is complex. Parliament can legislate to override any retained EU law, confirming its sovereignty in legal theory. However, the process of reviewing and reforming this body of law is ongoing and subject to political and practical constraints, including the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement with the EU.

Key Term: constitutional statutes A concept suggesting certain Acts of Parliament (like ECA 1972, HRA 1998, Acts of Union) have fundamental constitutional importance and might resist implied repeal, requiring express words for their amendment or repeal. The status and effect of this concept remain debated.

Related Topic: The Withdrawal Agreement and the Trade and Cooperation Agreement 🔗

While retained EU law derives from the UK's past membership, ongoing relationships with the EU are governed by international agreements like the Withdrawal Agreement (including the Northern Ireland Protocol) and the Trade and Cooperation Agreement. These agreements have their own status in UK law, potentially influencing how certain retained EU law principles (especially regarding citizens' rights) are applied, sometimes requiring interpretation consistent with EU law principles even post-Brexit.

Key Point Checklist

This article has covered the following key knowledge points:

• Parliamentary sovereignty is the principle that the UK Parliament is the supreme law-making authority.
• EU membership, via the ECA 1972, introduced the principle of EU law supremacy, limiting parliamentary sovereignty in practice.
• The EU(WA) 2018 repealed the ECA 1972 but preserved much existing EU law as 'retained EU law'.
• Retained EU law consists of EU-derived domestic legislation, direct EU legislation, and saved EU rights.
• The principle of supremacy of EU law generally ended on IP completion day (31 Dec 2020) for laws made after that date.
• However, retained EU law continues to take precedence over conflicting UK laws made before IP completion day, unless Parliament legislates otherwise post-Brexit.
• UK courts interpret retained EU law based on retained case law and principles, but higher courts can depart from retained EU case law.
• Parliament can amend or repeal any retained EU law, confirming its ultimate sovereignty.
• Legislation like the Retained EU Law (Revocation and Reform) Act 2023 provides mechanisms for modifying or removing retained EU law, potentially shifting power towards the executive.

Key Terms and Concepts

• parliamentary sovereignty
• retained EU law
• constitutional statutes