On 31 January 2020, the United Kingdom left the European Union. No longer an EU Member State, the UK’s relationship with the EU has changed fundamentally. That new relationship is governed by new legal instruments (both international and domestic).
UK-EU Relations Law represents a new, developing area of law (distinct from EU law) concerning the specific arrangements between the EU and the UK post Brexit, covering all aspects of the new legal relationship between the parties. This includes the potential for private parties to assert rights and bring claims based on legal agreements concluded between the UK and EU. It also includes the potential for legal disputes between the EU and the UK. The implementation and transposition of the new arrangements also gives rise to potential disputes.
This relationship needs to be assessed from two viewpoints.
First, as a matter of international law, the originating sources of those laws and rights are international agreements between the UK and EU. First, there is the Withdrawal Agreement between the EU and the UK, which entered into force on the 1 February 2020. That Agreement comprises two aspects: the Withdrawal Agreement itself (including the Protocol on Northern Ireland / Ireland – now known as the Windsor Framework) and a political declaration. Second, that political declaration eventually developed into a more comprehensive trade agreement between the EU and the UK, namely the Trade and Co-operation Agreement (the TCA). The TCA is the originating source of a considerable body of law.
Second, as a matter of domestic law, the rights and obligations arising under the Withdrawal Agreement have been incorporated within the UK (as a dualist state) by and under, inter alia, the EU (Withdrawal) Act 2018 and the EU (Withdrawal Agreement) Act 2020. The TCA has been incorporated into domestic law via a range of domestic legislation, most notably the EU (Future Relationship) Act 2020.
The four components of EU Relations Law
There are four components of EU Relations Law:
(1) Retention: certain EU law is transposed into domestic law and modified. This is called retained EU law. and, from 2024, assimilated law.
(2) Withdrawal: the UK- EU Withdrawal Agreement and the Northern Ireland / Ireland Protocol (the Windsor Framework) are a source of rights and obligations going beyond the mere divorce. This is called separation agreement law.
(3) New trade and cooperation: the UK-EU Trade and Cooperation Agreement. It will have significant domestic law implications as well as involving international disputes between the UK and EU. This is called relationship agreement law.
(4) Internal affairs: The separation from the EU after over 40 years leads to the need to repatriate and exercise new-found sovereignty in relation to a number of areas of domestic life e.g. the internal market and devolution arrangements.
Why EU Relations Law and not just EU Law?
EU Relations Law is distinct from EU law: (i) the sources are different; (ii) the content is different; (iii) the legal implications are different; and (iv) the geographical scope is different. EU Relations Law is focusing on the new relationship that will exist between the UK and Europe. It is the forward-looking counterpart to the more negative sounding “post-Brexit” issues. This is not “EU Law in the UK”: “retained EU law”, for example, is a snapshot of EU law as it existed in the past; it will be modified considerably by domestic law, and it will change and evolve over time.
EU Law, on the other hand, concerns the law of the remaining EU member states (and is relevant for those, e.g., wishing to import into or do business in the EU). That is distinct from the EU’s relationship with the UK. EU law will continue to be of importance to many, but it is different in scope from the distinct EU Relations Law, governing the UK’s new relationship with Europe. The flexibility and independent nature of the Bar means that those who continue to be experts in EU Law can continue to work and advise on cases of EU origin, even if they themselves are based in London. A significant number of barristers also have dual qualifications allowing them to practice EU Law from another jurisdiction.
However, if looking at the UK market, the category of EU Relations Law, concerning all aspects of the new relationship between the EU and the UK post Brexit, is much more closely aligned the reality and how this area of law will develop in future. The new category is not therefore just “Brexit law” – Brexit was an event that legally happened on 31 January 2020 and is backwards looking in perspective. EU Relations Law, on the other hand, represents the ongoing and future relationship.
You can watch an introduction video to EU Relations Law here.
The Blog
This blog explores all areas of EU Relations Law from both perspectives, including:
- the meaning and application of the Withdrawal Agreement, EEA EFTA Separation Agreement & the Swiss Citizens’ Rights Agreement;
- the UK and EU implementations of the Withdrawal Agreements;
- the Northern Ireland / Ireland Protocol (the Windsor Framework);
- the meaning and application of the UK-EU Trade and Cooperation Agreement;
- case comments on relevant judgments and opinions; and
- legislative changes and analysis of their implications.
The blog is maintained by Jack Williams of Monckton Chambers. Blog posts are written by subject specialist barristers at Monckton Chambers, academics, policy experts, regulatory officials and solicitors. It is for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of Monckton Chambers as a whole.
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