Welcome back to Crunching Concepts! Today, we present a special double feature in our journey through significant legal landmarks. We'll examine two interconnected constitutional developments that have fundamentally reshaped the UK's legal landscape: Brexit and Retained EU Law. This momentous pairing has challenged established principles of parliamentary sovereignty whilst redefining our domestic legal framework. Join us as we explore how the UK's departure from the European Union and the subsequent preservation of EU-derived law have transformed our constitutional architecture.
Brexit refers to the United Kingdom's historic decision to withdraw from the European Union following the June 2016 referendum in which 51.9% of voters chose to leave. This watershed moment culminated in the UK's formal departure on 31 January 2020, concluding 47 years of membership in the European project. The withdrawal process was initiated through Article 50 of the Treaty on European Union, setting in motion a complex two-year negotiation period that ultimately required extensions before reaching settlement. This unprecedented constitutional manoeuvre involved disentangling decades of integrated legislation and establishing new frameworks for trade, citizens' rights, and regulatory alignment.
Understanding Brexit is essential for several compelling reasons:
1. Constitutional Transformation: Brexit fundamentally altered the UK's constitutional architecture, dismantling the primacy of EU law which had been woven into the fabric of UK jurisprudence for nearly half a century.
2. Sovereignty and Democracy: The process raised profound questions about parliamentary sovereignty, the constitutional role of referendums, and the delicate balance of power between executive, legislative, and judicial branches of government.
3. Legal Recalibration: The withdrawal necessitated the creation of extensive new legislation to retain, modify or replace thousands of EU regulations, creating one of the most significant legal transitions in British history.
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5: In this watershed case, businesswoman Gina Miller challenged the government's assertion that prerogative powers permitted ministers to trigger Article 50 without parliamentary approval. The Supreme Court, by an 8-3 majority, ruled that fundamental changes to constitutional arrangements required an Act of Parliament, reaffirming parliamentary sovereignty as a cornerstone of the British constitution.
• R (Miller) v The Prime Minister [2019] UKSC 41: When Prime Minister Boris Johnson advised the Queen to prorogue Parliament for five weeks during critical Brexit deliberations, the Supreme Court unanimously found this action unlawful. The Court determined that the prorogation had the effect of frustrating Parliament's constitutional functions without reasonable justification, establishing important precedent regarding executive accountability.
• Factortame Ltd v Secretary of State for Transport [1990] EUECJ C-213/89: Though predating Brexit, this landmark case illuminated the relationship between UK and EU legal systems that Brexit would later unravel. The European Court of Justice established that national courts must set aside domestic legislation incompatible with EU law—a principle subsequently reversed by the European Union (Withdrawal) Act 2018, which restored parliamentary sovereignty post-Brexit.
Retained EU Law (REUL) refers to the substantial body of European Union legislation and legal principles that were preserved in UK domestic law following Brexit. The European Union (Withdrawal) Act 2018 established this framework by incorporating EU laws as they stood on 31 December 2020, ensuring legal continuity post-Brexit. This preserved corpus includes EU regulations, directives, decisions, and related case law that were applicable in the UK before Brexit. REUL essentially "domesticated" these provisions, transforming them from foreign law with special status into national legislation that Parliament can amend or repeal like any other domestic law.
The significance of REUL extends across multiple dimensions:
1. Legal Continuity: REUL ensures that laws derived from the EU continue to function effectively within the UK legal system, providing stability and predictability for businesses and individuals during the post-Brexit transition.
2. Sectoral Impact: It affects numerous sectors, from employment rights and environmental protection to consumer standards and financial services, maintaining regulatory frameworks that were previously under EU jurisdiction.
3. Legal Evolution: The Retained EU Law (Revocation and Reform) Act 2023 established mechanisms for the amendment, revocation, or replacement of REUL, signalling a gradual shift towards UK-specific legislation and divergence from EU standards where deemed appropriate.
• Lipton and another v BA Cityflyer Ltd [2024] UKSC 24: This significant case addressed compensation claims under EU flight compensation regulations for a flight cancelled due to pilot illness before Brexit. The UK Supreme Court ruled that EU law applied as the cause of action on the date of the flight fell under EU law prior to the implementation period completion day. The Court confirmed that this law continues as 'retained EU law' in the UK after Brexit, demonstrating how pre-Brexit EU regulations remain enforceable through the REUL mechanism.
• R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department [2023] UKSC 42: In this landmark judgement on the Home Secretary's 'Rwanda policy', the Supreme Court addressed multiple appeals, including a claim that the policy was incompatible with retained EU law. The Court rejected the appeal by ASM on this specific ground, illustrating how retained EU law continues to serve as a benchmark for evaluating government policies even after Brexit, while demonstrating the evolving interpretation of REUL's scope and application.
At CaseSnappy, we endeavour to transform the intricacies of legal developments into accessible and engaging insights. We hope our examination of Brexit and Retained EU Law has illuminated their profound constitutional significance and lasting legal impact. These twin phenomena represent perhaps the most significant constitutional experiment in modern British history—the deliberate untangling and reorganisation of a deeply integrated legal framework.
As we continue our Crunching Concepts series, we look forward to exploring further legal doctrines that shape our world. In the meantime, enhance your legal knowledge by signing up to CaseSnappy, where we provide clarity amidst legal complexity!