Brexit's Legal Legacy: Will Eu Law Still Apply?

The UK's exit from the EU, or Brexit, has led to a complex legal situation. Before Brexit, EU law applied to the UK through the European Communities Act 1972, as the UK was an EU member state. Now, the UK's relationship with the EU is governed by the Withdrawal Agreement, an international treaty negotiated under Article 50 of the Treaty on European Union. The Withdrawal Agreement includes provisions for citizens' rights, financial settlements, and the Northern Ireland Protocol, and sets out the terms for the UK's exit from the EU, including a transition or implementation period during which EU law continued to apply in the UK. During this transition period, the UK was still treated as an EU member state in terms of law, to allow businesses to adapt and for the UK and EU to negotiate a future trade deal. This transition period ended at 11 pm on 31 December 2020, at which point the direct mechanisms by which EU law applied in the UK ceased to have an effect.

The European Union (Withdrawal) Act 2018

The Act came into force on 31 January 2020 at 23:00 GMT, though it was amended by the European Union (Withdrawal Agreement) Act 2020, which preserved the effect of the European Communities Act 1972 during the implementation period. The European Union (Withdrawal) Act 2018 legislates for:

• The repeal of the European Communities Act 1972.
• Fixing "exit day" as 31 January 2020 at 23:00 GMT (previously amended multiple times).
• The formal incorporation of up to 20,000 pieces of EU law into UK law, known as retained EU law or REUL.
• Preservation of all laws made in the UK to implement EU obligations.
• Continuing to make available in UK law the rights in EU treaties that individuals rely on directly in court.
• Ending the supremacy of EU law in the United Kingdom.
• Creating powers for commencement orders and other secondary legislation under statutory instrument procedures.
• Parliamentary approval of the outcome of the government's negotiations with the EU under Article 50(2) of the Treaty on European Union.

The Act also enables the transposition of directly applicable EU law into UK law, creating a new category of domestic law known as retained EU law (REUL). It provides restricted power to the government to adapt and remove outdated laws. Additionally, it makes the future ratification of the withdrawal agreement dependent on prior parliamentary approval of the final terms of withdrawal.

The European Union (Withdrawal Agreement) Act 2020

The Act serves two main purposes. Firstly, it amends the European Union (Withdrawal) Act 2018 to accommodate an implementation period, during which the UK remained bound by EU law until 31 December 2020. This period allowed for a transition and provided time for the UK and EU to negotiate a trade deal. Secondly, the Act makes provisions in UK law for other aspects of the Withdrawal Agreement, including citizens' rights, the financial settlement, and the Ireland/Northern Ireland Protocol.

Additionally, the Act provides for Parliamentary scrutiny and oversight of the withdrawal process through primary legislation. Section 38(1) expressly recognises the sovereignty of the UK Parliament, although the effect of this section has been debated. The Act played a crucial role in the UK's transition out of the EU, ensuring a legal framework for the country's new relationship with the EU.

The Retained EU Law Act 2023

• Revokes all or part of 587 legislative instruments of EU-related origin
• Revokes all retained directly effective EU law
• Revokes the modified principle of supremacy of EU law
• Revokes the retained general principles of EU law
• Renames "retained EU law" to "assimilated law"
• Permits and encourages lower courts to depart from legacy caselaw of the Court of Justice of the European Union (CJEU)
• Confers broad delegated powers to restate, replicate, revoke and replace REUL/assimilated law
• Confers a power to update REUL/assimilated law in light of technological and scientific developments
• Relaxes the scrutiny rules for modifying or revoking REUL

The European Union (Future Relationship) Act 2020

The Act serves as the UK Parliament's ratification of the trade agreement, which was provisionally applied immediately after the Brexit transition period ended on 31 December 2020. The trade agreement itself was agreed between the UK and the EU and Euratom in December 2020. Before the agreement comes fully into force, the English version of the treaty needed to be legally checked and adopted by the European Parliament and the Council of the European Union.

The Act covers a range of provisions, including:

• Passenger name record data
• Customs
• Privileges and immunities
• Mutual assistance in criminal matters
• The retention of information received from member states
• Social security coordination
• The funding of the PEACE PLUS programme
• The implementation of agreements
• Powers relating to the functioning of agreements

The Act also makes provision for the future relationship between the UK and the EU, including in relation to trade and other matters.

The Northern Ireland Protocol

The Protocol's arrangements allow Northern Ireland to remain in the EU single market for goods, maintaining an open border between Northern Ireland and the Republic of Ireland. This was a key aspect of the Northern Ireland Peace Process and Good Friday Agreement, which ended the Northern Ireland Conflict. The Protocol, however, creates a de facto customs border in the Irish Sea between Northern Ireland and Great Britain.

The Protocol was amended by the Windsor Framework, which was adopted by the UK and EU in 2023. The Framework created two "lanes" for goods arriving in Northern Ireland from Great Britain: a green lane for goods remaining in Northern Ireland, and a red lane for goods that may be sent on to the EU. The Windsor Framework also introduced the \"Stormont brake\", which would let the Northern Ireland Assembly object to new EU rules affecting Northern Ireland's trade arrangements.

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