In this post, Will Perry of Monckton Chambers provides a summary of the first in a new series of six webinars on EU Relations Law (“EURL”) from Monckton Chambers on “The UK legal regime after Brexit – what every lawyer needs to know”. The first webinar was entitled: “Post-Brexit litigation in UK courts – 10 things every litigator needs to know”.
Speakers included:
Chair: Anneli Howard
Morag Ross QC (Scotland) (Axiom Advocates, Edinburgh)
The webinar was split into three parts: the impact of the European Union (Withdrawal) Act 2018 (“EU(W)A”) and retained EU law, the impact of the EU-UK Withdrawal Agreement and separation agreement law, and the impact of the EU-UK Trade and Cooperation Agreement (“TCA”) and future relationship law. Below is a brief summary of the discussion. A youtube recording of the webinar can be found here.
Retained EU law
1. What is retained EU law?
Jack Williams explained how, in general terms, retained EU law is a snapshot of EU law as it stood on ‘IP completion day’ (31 December 2020) which has been converted into domestic law. It is made up of 5 categories:
- EU-derived domestic legislation. This is found in s.2 of EU(W)A and includes all pre-existing domestic enactments (primary and secondary legislation, plus, for example, regulatory rules permitted under such legislation), which implemented or are otherwise related to EU or EEA law.
- Direct EU legislation. This is found in s.3 of EU(W)A. In short, it saves directly-effective EU legislation (except for Directives) that would have flowed down the s.2(1) conduit pipe in the European Communities Act 1972.
- Saved directly effective rights. This arises from the catch-all provision at s. 4 of EU(W)A, and might be called “saved directly effective rights”. This category ensures that any remaining EU rights and obligations which do not fall within ss.2 and 3 continue to be recognised and available in domestic law after the transition period. Jack here highlighted scope for debate as to how the “of a kind” wording at s.4(2) of EU(W)A should be interpreted.
- Retained case law. This is defined at s.6 of EU(W)A. It is formed of two sub-categories, namely: (i) retained domestic case law and (ii) retained EU case law – both only where the judgment or decision was handed down before IP Completion day.
- Retained general principles of EU law. S.6 of EU(W)A defines “retained general principles of EU law” as “the general principles of EU law, as they have effect in EU law immediately before IP Completion day and so far as they (a) relate to anything falling within the definition of retained EU law in ss.2, 3 or 4 of the 2018 Act and (b) are not excluded by s.5 or Schedule 1. Jack highlighted the lack of right of action in domestic law for breaches of these general principles (EU(W)A schedule 1), but noted that there may be creative ways for lawyers to rely on them through retained case law.
2. How will the Courts interpret retained EU law?
Morag Ross QC suggested that the courts are likely to interpret retained EU law “with care, slowly and cautiously”.
She explained the ways in which the Supreme Court, Scottish High Court of Justiciary and “relevant courts” (including the England and Wales Court of Appeal) are not bound by retained EU case law (see s.6(4) of EU(W)A): they can depart from it “when it appears right to do so”. She also noted that certain domestic regulations provide that other courts and tribunals (e.g. the Competition Appeals Tribunal – see Regulation 23 of Competition (Amendment etc.) (EU Exit) Regulations 2019) are not bound by retained case law, though subject to different tests for departure.
She emphasised that there was no great novelty to this framework: courts in the UK are already used to weighing up authorities from other jurisdictions, especially those in Scotland and Northern Ireland. “Nor”, she added, “is judicial decision making in a changed and developing constitutional context a new thing: not after 20 years of devolution.”
She predicted that, if this new position “is seen as an invitation to the courts to embrace the release from the bounds of EU law, it is not likely to be an invitation which is taken up with great alacrity”, but that the “default will probably be to adhere to what has gone before”. “Litigants who are pushing test cases to effect major departures are likely to have to work very hard indeed, and will probably be disappointed, at least in the short term”.
3. How can you challenge retained EU law and any subsequent modifications, including via use of S.8 Henry VIII powers?
Jack Williams considered challenges to retained EU law which had been modified by secondary legislation. He highlighted, at the outset, that some pieces of retained EU law are likely to have been modified 3 times: initially under the Henry VIII “deficiency” power at s.8 EU(W)A; again under the same powers to take account of the Withdrawal Agreement; and thirdly in order to implement the TCA via powers conferred by the European Union (Future Relationship) Act 2020 (“EU(FR)A”).
Focusing on the s.8 EU(W)A deficiency power, Jack commented that this was drafted “very widely on its face, but has considerable limitations”, which provide fertile ground for vires challenges. The main grounds of challenge are likely to be:
- Whether the amendment is correcting a “deficiency” (e.g. removing references to “EU Commission”), or whether it is being used as a “vehicle for policy changes” – something which the White Paper introducing EU(W)A explicitly ruled out.
- Whether the “deficiency” is something strictly “arising from the withdrawal of the United Kingdom from the EU” (EU(W)A s.8(1)).
4. What remedies do clients have against public authorities for measures that are incompatible with retained EU law?
Tom Sebastian considered changes to the way in which individuals and companies could challenge government measures which are incompatible with retained EU law.
He noted that usual public law principles and remedies are unaffected by the UK’s departure, but that the two “supercharged” and “unusual” remedies of (a) setting aside domestic law for incompatibility with EU law on the basis of the “supremacy” principle, and (b) Francovich damages (though subject to some exceptions), will generally be unavailable going forward. Litigants wishing to obtain damages against authorities will therefore have to rely on other legal bases: arguing that Parliament intended for the breach of a given statutory duty to be compensable in damages, or relying on common law negligence or the law of restitution.
Jack Williams added that some pieces of retained EU law would provide litigants with a right to damages: for example, public procurement legislation or the San Giorgio principle (as it exists in retained EU case law). He also suggested that claims for declaratory relief were likely to become more prevalent.
Morag Ross commented that A1P1 of the ECHR was unlikely to fill any void left by the unavailability of Francovich.
The EU-UK Withdrawal Agreement and relevant separation agreement law
5. What is separation agreement law?
Jack Williams provided a quick overview of “relevant separation agreement law” arising under the European Union (Withdrawal Agreement) Act 2020 (“EU(WA)A”). This includes any domestic law which implements the Withdrawal Agreement (including the Northern Ireland Protocol), the EEA Separation Agreement and the Swiss Citizens’ Rights Agreement. See further discussion here.
6. How is the withdrawal agreement implemented?
Jack considered some of the ways in which the Withdrawal Agreement has been implemented in domestic law. First, some provisions have been implemented via specific, and often very detailed, domestic implementing regulations – for example, in the field of citizens’ rights. Second, and more generally, EU(WA)A inserted a new s.7A into EU(W)A, which acts as a “conduit pipe” to give the Withdrawal Agreement direct effect and supremacy. This provision is worded incredibly similarly to the conduit pipe previously found at s.2(1) in the European Communities Act 1972. The existence of s.7A means that you have to look directly to the Withdrawal Agreement to understand the full range of rights and obligations it gives rise to in domestic law.
Morag Ross QC considered further ways in which the Withdrawal Agreement can be implemented into domestic law from a devolution perspective. First, s.8B of EU(W)A gives ministers the powers to make implementing regulations to implement Part 3 of the Withdrawal Agreement (headed “separation provisions”). Second, s.8C of EU(W)A gives ministers very wide powers to make regulations to implement the Northern Ireland Protocol. Third, Schedule 2 to EU(W)A grants the devolved authorities various powers to implement the Withdrawal Agreement (as well as powers to deal with deficiencies arising from withdrawal).
Morag highlighted the scope for divergence presented by this third category of powers, stating that it was “inevitable” that there will be some differences across the UK. She also considered these Schedule 2 powers in light of the Second “Continuity” Bill recently passed by the Scottish Parliament. She suggested that the powers proposed in this legislation (designed to “keep pace” with EU law) may add very little to what is already provided for in EU(W)A.
7. What jurisdiction and influence does the CJEU have going forwards?
Tom Sebastian commented that, though the CJEU will have “nowhere close to the grand role it used to have”, it was “still alive and kicking” and will play a role “for years to come”. In this regard, he highlighted the two main areas in respect of which references may be made.
First, a UK court or tribunal can refer any citizens’ rights issues arising under Part 2 of the Withdrawal Agreement to the CJEU within 8 years of the end of the transition period. The test for domestic courts is whether it “considers that a decision on that question is necessary to enable it to give judgment” (art.158(1) Withdrawal Agreement). This is different to the test which applied in respect of preliminary references under art.267 TFEU. Tom queried how commonly this test is likely to be satisfied if it is taken at face value.
Secondly, pursuant to art.12(4) of the Northern Ireland Protocol, the CJEU will have full jurisdiction over EU law which continues to apply in Northern Ireland. This jurisdiction is not time limited and the test for making references is the same as that found at art.267 TFEU. Tom highlighted the fact that infractions of the Protocol by the UK will be determined by the CJEU, something which is highly uncommon for an international agreement.
The TCA and future relationship law
8. Are there any direct rights of action for individuals under the TCA?
Tom Sebastian explained how the TCA is “radically different” from the EU system, but highly conventional for an international trade treaty, in that it does not confer individual rights. This is explicitly stated at Common Provision 16, which reads “nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties”.
However, he noted that the TCA contains various provisions requiring the parties to create rights or standing in various areas of law – for example, in the fields of state aid, competition and labour.
9. Can the TCA be used to strike down inconsistent national measures?
Jack Williams considered (the unusually broad) s.29 of EU(FR)A, which states that “Existing domestic law has effect … with such modifications as are required for the purposes of implementing in [domestic law] the [TCA]”. See further discussion here.
The panel commented that parties will likely be able to make good use of s.29 in the courts. For example, the public procurement provisions in the TCA require EU entities not to be discriminated against. If there was nothing on the face of domestic procurement regulations which reflected this requirement, and a public authority discriminated against an EU company in a tendering exercise, that company could bring proceedings arguing that the public authority had acted in error of law by failing to modify the domestic regulations.
The panel, however, went on to highlight two clear limitations with s.29 “conduit pipe”. First, it only applies to TCA provisions which are capable of flowing down the pipe in the first place (i.e. those where “implementation is necessary for the purposes of complying with the international obligations of the United Kingdom”). Second, s.29 only applies where a TCA provision “is not otherwise so implemented”.
Anneli Howard suggested that, in addition to s.29, there may be other ways interpreting domestic law in line with the TCA. For example, she highlighted that that Common Provision 3 on “good faith” was modelled on Article 4(3) TEU.
10. Indirect participation by private individuals or companies in state-to-state disputes
Morag Ross QC stated that individuals and companies have no formal role in international disputes arising under the TCA. However, the EU and UK will not litigate “in the abstract” to make “academic points”, but will instead bring proceedings because of prejudice to the trade of those affected by how the TCA is being implemented. There may therefore be scope for private individuals affected by the TCA to play a role in disputes by contributing evidence.
Anneli Howard further noted that some TCA provisions contain explicit requirements to obtain evidence from “relevant persons” affected by state measures that distort trade.
What’s coming up next?
Full details of the entire Monckton webinar programme (and registration forms) are available here. The next webinar, on Thursday 28 January 2021 at 1pm – 2pm is entitled “Subsidy control law – navigating the new ‘post-state aid’ regime”. You can sign up here.
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