The recent Supreme Court decision on the Government’s prorogation of Parliament has put the workings of public law and judicial review into the limelight. While public law may have a key role in shaping English law following the UK leaving the EU, it is also clear that Brexit will have a notable impact on the workings of the domestic courts and on the public law landscape.

Despite continued uncertainty over whether the UK will leave the EU with a deal (whatever the terms of that deal may be), or no deal at all, we do know what the configuration of English law is likely to look like in the event of the UK leaving the EU. The European Union (Withdrawal) Act 2018 (“EUWA”), which will take effect on “exit day” (defined as 11 pm on 31 October 2019), aims to ensure continuity in the immediate aftermath of the UK’s exit, and to allow the UK Parliament to replace EU law in a more systematic manner once the UK has left the EU. In this note, we examine how the EUWA will have a particular impact on public and administrative law in the UK.

In brief, the EUWA repeals the European Communities Act 1972 (“ECA”) which is the statute that brought the UK into the EU, implemented the Treaty on the Functioning of the European Union and sets out the procedure by which EU law applies in the UK. The EUWA retains all “EU-derived domestic legislation” (i.e. domestic legislation which implemented EU Directives), converts into domestic law all “direct EU legislation” (e.g. EU Regulations and decisions), and converts into domestic law “any rights, powers, liabilities, obligations, restrictions, remedies and procedures” recognised by reason of the ECA. Moreover, the EUWA revokes the supremacy of EU law over any domestic law passed or made following exit day, and it revokes the supremacy of the Court of Justice of the European Union (“CJEU”) over English courts.

How will Brexit affect the public law landscape?

In addition to the general effect of the EUWA on English law, a number of provisions are likely to have a specific impact on public law claims and procedures.

Declarations of invalidity

Under the EUWA, there will be no right on or after exit day for a party to challenge a retained EU law before an English court on the basis that immediately before exit day an EU instrument was invalid. This will be the case even if the CJEU subsequently (i.e. after exit day) recognises that the instrument is invalid. Instead, such a challenge may only be brought in the domestic courts where there is a regulation made by a Minister of the Crown that allows for a challenge which would otherwise have been brought against an EU institution to be brought against a UK public authority.

The EUWA also clarifies that any decision by the CJEU dated before exit day which determines that the EU instrument is invalid will apply in the UK.

Declarations of incompatibility

Since EU law will no longer be supreme over English domestic law on or after exit day, the Administrative Court will no longer have the power to declare that an English domestic law passed or made after exit day is incompatible with EU law. This also means that courts will no longer be able to disapply domestic laws on the basis that they are incompatible with general principles of EU law.

Francovich damages

Under EU law, a member state may be liable to pay damages to individuals for a breach of EU law by the state (e.g. for failing to implement an EU Directive) – these are known as “Francovich damages”. However, under the EUWA, there will be “no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”. This means that a party will no longer be able to bring a cause of action in damages against the UK for failure to implement EU law or for a breach of EU law.

Therefore, in order to be awarded damages in a successful public law challenge after exit day, a potential party will have to establish a private claim in tort, contract or restitution, or show a right to recover a sum due (e.g. a debt) from a public body.

The principle of proportionality

The EUWA confirms that only general principles of EU law that have been recognised as such by the CJEU before exit day will continue to form part of domestic law. However, after exit day there will be no right of action in domestic law based on a failure to comply with any of the EU law general principles.

These general principles include the principle of proportionality which has been applied by English courts to interpret EU law since the 1970s and will therefore remain part of English law following exit day.

Subordinate legislation: Henry VIII powers

The EUWA empowers Ministers of the Crown to correct any deficiencies in retained EU law (such as failure to operate effectively) by making regulations providing for the prevention, remedy and mitigation of any such deficiency as the Minister considers appropriate, for a period of two years following exit day. Under the EUWA, “deficiency” is defined very broadly and, despite the EUWA restricting the Minsters’ powers, the use of the word “appropriate” (instead of “necessary”) exacerbates the broadness of these powers, allowing Ministers to be more subjective in their analysis.

Consequently, the scale of the subordinate legislation which will arise out of Brexit is likely to be large. Unlike primary legislation, subordinate legislation is capable of being subjected to judicial review and therefore it will have an important role in ensuring EU law is properly retained and integrated into domestic law. Judicial review is also likely to be a key tool in keeping those broad powers in check.

For the full article, please visit https://www.lexology.com/library/document.ashx?g=15fef78c-7614-47e8-895e-b98df9c24c80 

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Francesca Richmond is a partner in the Dispute Resolution team in the Firm's London office, where she advises regulators and regulated entities on advisory, risk management and contentious matters, with a focus on securing commercial outcomes by application of competition law, EU law, human rights and domestic judicial review principles.

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