Uk-Eu Law: Understanding The Dynamic Legal Relationship

The European Union is a political body with laws that constitute its basic governance structure. The EU's primary constitutional sources are the Treaty on European Union and the Treaty on the Functioning of the European Union, which have been agreed or adhered to by the governments of all 27 member states. The Treaties establish the EU's institutions, list their powers and responsibilities, and explain the areas in which the EU can legislate with Directives or Regulations.

The European Commission is responsible for drafting and proposing legislation. The European Parliament (elected by EU citizens) and the Council of Ministers (representing national governments) amend the draft proposals and vote on whether these proposals should become EU law. National governments and the European Commission are then responsible for implementing the laws that are passed.

The two most common forms of EU legal acts are regulations and directives. Both are legally binding and applicable to all 27 countries of the EU. Regulations become part of national law as soon as they’re passed. EU countries must pass their own laws to put directives into practice.

The principle of 'supremacy' describes the relationship between EU law and national law. It says that EU law should prevail if it conflicts with national law. This ensures that EU rules are applied uniformly throughout the Union. The UK accepted the supremacy of EU law in the European Communities Act, passed by Parliament in 1972.

The UK's three distinct legal systems: English law, Scots law, Northern Ireland law, and Welsh law

The UK has three distinct legal systems: English law, Scots law, and Northern Ireland law. Since 2007, there have been calls for a fourth type, that of purely Welsh law, as a result of Welsh devolution. However, Welsh law is not a separate legal system per se, and Wales is not generally considered a fourth jurisdiction of the UK. This is because the judiciary and courts in Wales follow English law, which is made by the Parliament at Westminster, and is not specific to Wales.

English Law

English law refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. It is based on the principles of common law and has its own legal doctrine, distinct from civil law legal systems since 1189. There has been no major codification of the law; instead, the law is developed by judges in court, applying statute, precedent, and case-by-case reasoning to give explanatory judgments of the relevant legal principles. These judgments are binding in future similar cases. The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice for civil cases, and the Crown Court for criminal cases.

Scots Law

Scots law is a unique legal system with an ancient basis in Roman law. It is a mixed legal system, comparable to that of South Africa, containing elements of both civil law and common law. Since the formation of the Kingdom of Great Britain under the 1707 Acts of Union, Scots law has shared a legislature with England and Wales. While each retained fundamentally different legal systems, the Union brought English and Welsh influence upon Scots law, and vice versa. The chief courts are the Court of Session for civil cases and the High Court of Justiciary for criminal cases. Sheriff courts deal with most civil and criminal cases and provide a local court service with 49 sheriff courts organised across six sheriffdoms. The Scottish legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty", and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial.

Northern Ireland Law

The law of Northern Ireland is a common law system administered by the courts of Northern Ireland, with ultimate appeal to the UK Supreme Court in both civil and criminal matters. It is closely similar to English law, with the rules of common law having been imported into the Kingdom of Ireland under English rule. However, there are important differences. The sources of Northern Irish law are Irish common law and statute law, including statutes of the Parliaments of Ireland, the UK, and Northern Ireland, as well as statutes of the devolved Northern Ireland Assembly. The courts of Northern Ireland are headed by the Court of Judicature of Northern Ireland, consisting of the Northern Ireland Court of Appeal, the Northern Ireland High Court of Justice, and the Northern Ireland Crown Court.

Welsh Law

Welsh law refers to the primary and secondary legislation generated by the Senedd (Welsh Parliament), using the devolved authority granted in the Government of Wales Act 2006, amended by the Wales Act 2014 and Wales Act 2017, and in effect since May 2007. Each piece of Welsh legislation is known as an Act of Senedd Cymru. As there is no criminal law within contemporary Welsh law, Wales is not generally considered a fourth jurisdiction of the UK. However, there have been multiple calls from both academics and politicians for a Welsh criminal justice system.

The supremacy of EU law

The principle of supremacy, or primacy, describes the relationship between EU law and national law. It is one of the most fundamental principles of EU law and is integral to the debate surrounding the intergovernmental and supranational nature of the EU. It also has significant importance for the concept of European governance.

The principle of supremacy was derived from an interpretation of the European Court of Justice (ECJ), which ruled that European law has priority over any contravening national law, including the constitution of a member state itself. The ECJ ruled that national courts and public officials must disapply a national norm that they consider not to be compliant with EU law.

The majority of national courts have generally recognised and accepted this principle, except where European law outranks a member state's constitution. As a result, national constitutional courts have reserved the right to review the conformity of EU law with national constitutional law.

The UK, as a former member state, accepted the supremacy of EU law for some time. The European Communities Act, passed by Parliament in 1972, accepted the supremacy of EU law, and this principle has been endorsed by the UK courts.

The principle of supremacy ensures that EU rules are applied uniformly throughout the Union. If national laws could contradict the EU treaties or laws passed by the EU institutions, there wouldn't be a single set of rules in all member countries.

However, the UK government's ability to contradict EU laws is limited by the doctrine of parliamentary sovereignty, which holds that there are no limits on what Acts can be passed or removed. This doctrine has been a point of contention in the UK's relationship with the EU, and the UK's withdrawal from the EU in 2020 further emphasised this tension.

Upon Brexit, EU law was transplanted into domestic law as "retained EU law", and the UK remained temporarily aligned with EU regulations during the transition period from 31 January to 31 December 2020. The Retained EU Law (Revocation and Reform) Act 2023 became law in June 2023, allowing the UK government to revoke or modify retained EU laws and changing how such laws are interpreted. As of 1 January 2024, retained EU law no longer holds supremacy within the UK, and remaining laws are under review.

The UK's Withdrawal Agreement with the EU

The Withdrawal Agreement covers a range of matters, including money, citizens' rights, border arrangements, and dispute resolution. It also includes a transition period, during which EU law continued to apply in the UK, to ensure a smooth transition and allow time for the UK and EU to negotiate a new trade deal. The transition period lasted until December 31, 2020, with a provision for extension by mutual consent.

During the transition period, the UK remained in the single market and the customs union, and free movement of people continued. The UK also continued to pay into the EU budget but was not represented in the decision-making bodies of the EU.

The Withdrawal Agreement Bill (WAB) is the legislation that implements the Withdrawal Agreement into UK law. It sets out the specific details of the UK's exit from the EU, including the "divorce bill" payments, the new protocol on Ireland, and the role of the European Court of Justice in the UK. The WAB also establishes an independent monitoring authority (IMA) to handle complaints from EU nationals in the UK regarding their treatment by the government.

The WAB was passed by the UK Parliament and given Royal Assent, turning the Withdrawal Agreement into UK law and allowing the UK to ratify the treaty. The European Parliament and the Council of the European Union also ratified the agreement, concluding the deal and allowing it to enter into force.

The UK's Retained EU Law (Revocation and Reform) Act

The Retained EU Law (Revocation and Reform) Act 2023 will:

• Revoke all or part of 587 legislative instruments of EU-related origin (while thousands of other legislative instruments will be kept)
• Revoke all retained directly effective EU law, such as rights and obligations conferred directly under EU treaties or directives
• Revoke the modified principle of supremacy of EU law, which governs the hierarchy of laws passed before the end of the transition period
• Revoke the retained general principles of EU law, which govern the interpretation of REUL
• Rename "retained EU law" as "assimilated law"

Additionally, the Act:

• Permits and encourages lower courts to depart from legacy case law of the Court of Justice of the European Union (CJEU)
• Confers broad delegated powers to restate, replicate, revoke and replace REUL/assimilated law (these powers will expire after 23 June 2026)
• Confers a power to update REUL/assimilated law in light of technological and scientific developments (these powers will not expire)
• Relaxes the scrutiny rules for modifying or revoking REUL, making it easier to do so using pre-existing delegated powers

The UK's acceptance of the supremacy of EU law, as outlined in the European Communities Act 1972, has been a long-standing principle. The principle states that EU law should prevail if it conflicts with national law, ensuring uniform application throughout the EU.

The UK's post-Brexit relationship with the EU

The UK officially left the EU on 31 January 2020, at 11 pm GMT, following a referendum on 23 June 2016, in which the Leave side received 51.9% of the vote. The UK continued to conform to EU regulations during the "Brexit transition period", which began on 1 February 2020 and ended on 31 December 2020. This transition period allowed time for the UK and EU to negotiate a bilateral trade agreement.

The Trade and Cooperation Agreement allows for tariff- and quota-free trade in goods between the UK and EU. However, trade is not as smooth as when the UK was an EU member, as there are now customs checks. The UK has withdrawn from the EU single market and customs union, and EU participation in international agreements no longer includes the UK. These changes have created difficulties, including the reintroduction of customs formalities for goods imported and exported between the EU and UK, and the end of financial passporting rights for the UK services sector.

Despite these changes, there are still strong ties between the UK and EU. For example, in September 2023, the UK and EU came to an agreement for the UK to rejoin the EU's funding programme for scientific research, Horizon Europe. Additionally, the UK and EU have a shared history that has influenced their legal systems. The UK has three distinct legal systems: English law, Scots law, and Northern Ireland law. Upon Brexit, EU law was transplanted into domestic law as "retained EU law", and the UK remains temporarily aligned with EU regulations.

Public opinion on the UK's relationship with the EU is varied. Since May 2022, opinion polling has shown a steady increase in the number of Britons seeking to rejoin the EU. In November 2022, 53% of polled Brits would opt to re-join the EU if another referendum were held. However, the result of the 2016 referendum defied expectations, with global markets roiling and the British pound falling to its lowest level against the dollar in 30 years.

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