Synopsis of Cambridge-Monckton Webinar (1): ‘What is EU Relations Law? The Legal Ecosystem of Brexit’

In this post, Alfred Artley of Monckton Chambers provides a summary of the first Cambridge Law Faculty – Monckton Chambers EU Relations Law seminar.

In the first of a series of five webinars jointly organised by Monckton Chambers and the Centre for European Legal Studies at Cambridge University, four academic and practising lawyers outlined the legal landscape of the new ‘EU Relations Law’ discipline, explaining its legal foundations in domestic, EU and international law and identifying key areas that remain especially problematic. A recording of the one-hour webinar is available here.

What is EU Relations law?

Jack Williams began by setting out the timeline of key events so far and going forward into the New Year, and emphasised how although ‘Exit Day’ has already occurred, significant change to the legal landscape will only occur on ‘Implementation Period Completion Day’ on 31 December this year (‘IPC Day’). Jack’s slides can be viewed here.

First, Jack explained that there will be four main ‘pillars’ that collectively comprise the new legal ecosystem of EU Relations Law from 1 January 2021: retained EU law; the Withdrawal Agreement (and Northern Ireland Protocol); any future free trade agreement or further ‘deal’ with the EU; and domestic legislation regulating the UK’s internal affairs (such as the new Internal Market Bill). For each of these elements it is necessary to consider both the international and domestic perspectives, in particular how the UK chooses to implement its international agreements.

Second, I took from Jack’s talk that the concept of ‘retained EU law’ is potentially misleading and not the entirety of EU Relations Law, as existing EU law may not simply be preserved in aspic as it was on IPC Day and there will be considerable new substantive obligations arising from the EU Withdrawal Act and any future FTA. The EU (Withdrawal) Act 2018 gave ministers powers to pass delegated legislation to amend existing law to remedy any deficiencies that would otherwise arise. Moreover, all the amending regulations passed prior to the Withdrawal Agreement were drawn up on the basis of a no-deal Brexit, so may now need to be amended further, and further amendments may also be required in future in the light of whatever deal emerges to govern the future relationship.

Third, inevitably there is likely to be a good deal of policy choice when amendments are made, so the constitutional implications of allowing minister Henry VIII powers to implement these choices are significant.

Fourth, Jack commented that given the sheer volume of new legislation that will be required before IPC Day, not least to implement any new arrangement on the future relationship, it is possible that there may be some kind of ‘fudge’ to create a short further mini-transition period, although this would require further primary legislation domestically.

The withdrawal agreement

George Peretz QC spoke next and focused on the existing Withdrawal Agreement.

George first noted that although it is an agreement entered into between a sovereign state and a supranational body and thus may not strictly be subject to the Vienna Convention, most of the Convention’s provisions can be found in customary international law and would apply in any event. Moreover, he noted that the Withdrawal Agreement is not the legal basis for the UK’s departure from the EU; this was Article 50. Instead it is a legal instrument to facilitate an orderly withdrawal.

Second, in the UK, the Agreement is intended to have the same status as the EU treaties in EU member states (Article 4); the Agreement must also be taken to be part of the EU’s legal order and directly effective accordingly, though this is nowhere made express. Much of the Agreement will naturally lapse or become redundant over time (such as ‘run-off’ provisions relating to finance).

Third, the Agreement itself has no specific termination provision, though the Northern Ireland Protocol has an initial four-year term prior to the end of which Northern Ireland is required to give ‘democratic consent’ for its continuation for a further period. Although the international law provides a route to withdraw from a treaty as a result of a ‘fundamental change of circumstances’, this is a very high bar to overcome, and the UK is unlikely to be able to rely on this to opt out of any part.

Fourth, George explained that the Joint Committee created by the Agreement has some limited powers to amend it, but any major change would require a new primary agreement, and the EU legal basis for this would be unclear. While on a strict view the EU’s powers under Article 50 are now spent following the passage of the Withdrawal Agreement, it has been argued that Article 50 should also be read as containing an implied power to amend or vary the existing agreement by further agreement if required.

Finally, Article 5 of the Withdrawal Agreement contains ‘good faith’ provisions that the parties shall fulfil their respective obligations and refrain from any measures which could jeopardise the attainment of the Agreement’s objectives. This is likely to be a key battleground going forward, particularly with regard to the current Internal Market Bill, which the EU contends is already a breach of this obligation. An important question will be whether this Article should be interpreted in accordance with existing EU jurisprudence on the principle of ‘sincere cooperation’  under Article 4(3) TEU.

Domestic implementation

Professor Alison Young then looked at key aspects of the EU (Withdrawal) Act 2018 and the EU (Withdrawal Agreement) Act 2020: how (a) the Withdrawal Agreement and the NI Protocol  is implemented in domestic law and (b) how legacy EU law is retained in domestic law. Alison’s slides are available here.

Alison first explained that there are a number of key exceptions to the retention principle, such as the European Charter on Fundamental Rights. General principles of EU law only continue to apply for the purposes of interpreting other retained EU law, and Francovich damages are abolished.

Second, the position in relation to directives is complicated. If they have been fully transposed into domestic law, then it is simply the domestic law that applies; if not, the issue will be whether the purported right under the Directive is ‘of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP completion day’ (s. 4(2)(b) EU (Withdrawal) Act 2018). What this is intended to mean is unclear: the courts will have to decide whether this means a specific right that has already been recognised in a particular case, or any kind of right that generally would have been considered directly effective previously. See here for more discussion of this issue.

Third, as for interpretation, the ‘validity, meaning or effect’ of retained EU law will be interpreted in line with existing EU case law and general principles as matters stood on IPC Day (s. 6 (3) EU(W)A 2018). However, the Supreme Court already has power to diverge from this, and pending the outcome of a consultation exercise presently underway, lower courts may soon have this power too. Looking ahead to how European caselaw develops after IPC Day, the domestic courts will no longer be bound by this, but ‘may have regard to a CJEU decision so far as it is relevant to any matter’ before them (s.6(1) EU(W)A 2018) – another loosely drafted provision which gives significant scope for future litigation.

A new FTA?

Finally, Professor Kenneth Armstrong made some observations on the possible ‘legal quality’ of any future relationship agreement.

First, he noted that on some points the two sides begin from a common starting point, but diverge on their desired outcomes. Both signed up to the Political Declaration at the same time as the Withdrawal Agreement, and the EU has developed its negotiating mandate from this; but the UK has now retreated from some of its previous commitments, in particular as regards maintaining a ‘level playing field’ – as the current dispute around the Internal Market Bill demonstrates.

Second, Kenneth noted that the UK Government (the current administration even more than its predecessor) is determined to have regulatory autonomy, and freedom to diverge from EU norms where it wishes to do so. The EU likewise wants to protect the autonomy of its existing social market economic model, and therefore wishes to keep the UK closely aligned to avoid regulatory undercutting.  Whereas Theresa May’s government wanted a bespoke Free Trade Agreement (‘FTA’), the Johnson administration is keen to get whatever kind of FTA it can, so envisages a much more basic deal consisting of boilerplate free trade provisions copied from existing agreements.

Third, he commented that the UK would prefer to negotiate on individual areas separately, and have a future relationship governed by a series of mini-agreements. This would be more like the EU’s current relationship with Switzerland, but the EU is not keen to replicate the complexities this has entailed, and instead wants a single comprehensive package, subject to a single common dispute resolution mechanism. This difference of views is further reflected in the two sides’ attitudes to the negotiating timetable. Though the EU would have been prepared to extend the transition period to allow for further negotiation, the UK has refused, heightening the risk of no deal by the current IPC Day.

Finally, it is often said that in the event of ‘no deal’ UK-EU trade will simply continue on WTO rules, but the talk demonstrated that in reality the position is not quite so simple. The effect of various ‘no deal’ statutory instruments that the UK has already put in place will also need to be considered, and the EU’s existing rules on trade with third countries will also become relevant too.

What’s up next?

The next webinar will focus on interpretation, enforcement and dispute resolution mechanisms under the new EU relations legal order. The event will be chaired by Christopher Vajda, former CJEU judge and member of Monckton Chambers, and will take place on Wednesday 14 October at 1pm. Details of how to register are available here.

Full details of the entire Cambridge-Monckton webinar programme (and registration forms) are also available here.

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