A Look into Brexit Laws and where we’re at right now

by Faareen Ali

The UK left the European Union (EU) on 31 January 2020 and is now in a transition period (also known as the implementation period) which ends at 11:00pm on 31 December 2020. During the Implementation period, EU and UK have been in negotiation to reach an agreement on; Trade, Aviation, Licensing and Regulation of medication and Law Enforcement. Whilst this is happening, the UK is still being treated as a Member State, only that it will no longer be a part of EU institutions, such as the European Parliament, EU Commission, or the EU summit. This article will provide an overview of Brexit, exploring some of the different laws which were enacted to finalise Brexit.

EU Withdrawal Act 2018

The UK is a ‘dualist’ state, which means that a Treaty cannot be enforced domestically without Parliament passing legislation on it (known as ratification). A treaty is an agreement between two states. An example of a treaty includes the Withdrawal Agreement, which sets out the agreed terms upon which UK exited the EU. This was subsequently implemented in the UK through the EU Withdrawal Act 2018 and EU withdrawal Act 2020.

There are separate methods of implementation, depending on the classification of EU law. EU directives are frequently incorporated by Ministers via secondary legislation (subordinate or laws made by Ministers). These are legal Acts by EU which require member states to achieve certain results, by employing their own measures. Whereas, EU regulations, which are also legal Acts of the EU, are automatically implemented.

What happens to all the EU law following Brexit?

The first of the EU Withdrawal Acts repealed the European Communities Act 1972, to cease EU law from having supremacy over UK law. It made provisions to convert direct EU law into domestic law and preserve the legislation which implemented it in the first place. If UK had failed to make provisions for retention and preservation following Brexit, then there would’ve been serious gaps in our statute book, as our legal framework is significantly made up of EU law.

All retained EU laws are open to being amended or repealed. There has been power delegated to Ministers in the event some laws do not operate well, so any issues can be corrected through regulations. For example, corrective action will need to be taken where the law requires UK to seek an opinion from the EU Commission on a certain matter, and for any similar laws.

Are any laws excluded from retention?

There are certain laws which are exempt from retention, such as the Charter of Fundamental Human Rights (CFHR). The CFHR is often confused with the European Convention on Human Rights (ECHR), however they are separate. The CFHR is a single text which was drafted by the EU and is interpreted by the Court of Justice of the European Union (CJEU). It brings together our personal, civic, political, economic and social rights from;

  1. Rights found in case law of the CJEU
  2. The rights and freedoms included in the ECHR
  3. Principles and rights derived from the constitutional traditions of the EU member states, and other international instruments.  

However, the ECHR was drafted by the Council of Strasbourg which is interpreted by the European Court of Human Rights, and is the implemented into the UK domestic law by way of Human Rights Act 1998.

At the time, the government had said that the abolition of  CHFR made no difference to our protections, as Human Rights continued to apply under the ECHR. In fact, the revised Political Declaration setting out the future relationship between  EU and UK 2019, highlighted that ‘core values and rights’ are the ‘basis of co-operation’ between the two nations, and that the UK will continue to respect the framework of the ECHR. 

However, there had been some reports early this year confirming  that the UK had refused to formally commit to the ECHR.  In fact, on 13 September 2020, it was reported that Boris Johnson was looking to withdraw from Human Rights Act, with the UK negotiators further saying that this is a matter of sovereignty.  The position over Human Rights will become clear in the coming weeks, but should the UK government decide to exclude this, then we will end up with our own Bill of Rights.

What happens to case law of the CJEU?

This Act makes the decisions of the Court of Justice of the European Union (CJEU) binding and gives it the same status in the UK Courts as the superior status of the decisions of the Supreme Court, or High Court of Judiciary in Scotland. This means that lower courts are bound by the decisions of the CJEU, as they would be bound by the mentioned courts, unless overruled.

What are the other key terms of exit?

Some other key terms include, (but not limited to):

  • The Secretary of State be responsible for outlining the environmental principles, and designing a policy for its application and enforcement.
  • Family unity can be applied for by those seeking asylum or other protection in Europe, for example, in cases such as an unprotected child making an application to an international member state to unite with family.

EU Withdrawal Act 2019

The 2019 Act simply extended the date of exit, to enable the UK and EU to continue negotiating the terms of exit so to prevent a no-deal Brexit. It effectively ratified the extension to the Article 50 negotiating period.  

EU Withdrawal Act 2020

The 2020 Act was introduced after Boris Johnson took office as Prime Minister, and is designed to work hand in hand with the 2018 Act. It changed some parts of the 2018 Act, and forms the final agreement upon which Brexit was finalised. It was a part of this Act that any new laws constituted during the implementation period would continue to apply automatically in the UK until the end of this period, as opposed to the exit day, which was the position under the 2018 Act.

Citizen’s rights

The Act legislates rights relating to residence, professional qualifications and equal treatment, and makes available remedial where they are not upheld. Nationals of Norway, Iceland, Switzerland and Liechtenstein will be able to rely on the same rights as EU Citizens.

Some of the rights include; rights relating to entry, rights of frontier workers, protection against discrimination and recognition of professional qualifications. The Act also establishes an Independent body called Independent Monitoring Authority to ensure these rights are upheld.

The Act also creates an EU Settlement Scheme which allows EU, EEA, eligible person of Northern Ireland and Swiss Citizens to continue to live in the UK after 30 June 2021. In order to learn how the scheme works, and what the terms of each status are, please click here.

Northern Ireland Protocol

The UK (inclusive of Northern Ireland) and EU agreed to a number of provisions under the Northern Ireland Protocol, which takes precedence over UK law. It provides that the UK would leave the Custom Union, and works to ensure continuity of peace. It also protects the rights of Northern Ireland citizens and says that there will be an unrestricted access across the UK for movement of goods, preventing a hard border between the Republic of Ireland and Northern Ireland.

Some of the provisions include:

  • There will be no checks or controls at or near the border of Northern Ireland or Ireland.
  • The withdrawal would not impact the rights, safeguards and equality of opportunity as set out in the Belfast (Good Friday) Agreement 1998. It also inserts a restriction prohibiting the Northern Ireland Assembly and Northern Ireland Ministers and departments from acting in a way which is incompatible with the rights of citizens.
  • An amendment was also made under the Northern Ireland Act 1998, to give the Northern Ireland Human Rights Commission ‘own motion’ standing powers to bring proceedings under the Human Rights Act 1998 if any breach occurs.
  • Financial Support to be provided to businesses to support the production of and trade in agricultural products in Northern Ireland, in accordance with the EU law, especially which affect the trade between the EU and Northern Ireland.

Under the Protocol:

  • Moving goods from Northern Ireland to Great Britain would take place as it is now, with no additional process, paperwork, and work to provide an unfettered access.
  • Minimal changes to how goods are moving from Great Britain to Northern Ireland.
  • Trade in goods between Northern Ireland, Ireland and between the EU member states will remain the same, with no regulatory checks or tariffs (taxes). This means that the Northern Ireland will remain in the Single Market for goods, and be subject to the EU laws to ensure that goods can move freely into the Republic of Ireland (which is still an EU member state).
Internal Market Bill

In a recent turn of events, the government introduced an Internal Market Bill which rewrites some parts of this withdrawal Agreement, contravenes the International Law, risks the UK leaving the EU with a no deal, and makes the prospect of a legal action, inevitable.

The Bill gives UK Ministers the right to overrule the Northern Ireland Protocol, and dictate the level of financial support available to businesses in Northern Ireland without having regard to the European Law. As aforesaid, it was a term of the NI Protocol, that financial support would be decided on the basis of the EU law, and that the NI Protocol (a treaty) would take precedence over UK law. However, the UK are intent on reneging the very terms they agreed on. On 22 September 2020, the Bill successfully passed the first stage in House of Commons, with MP’s backing, and will now be voted on this week. It will then make its way to the House of Lords.

We have only a period of two weeks to finalise a trade deal (15 October 2020). However, after the Internal Market Bill, it seems highly unlikely that the EU will want to enter into any form of agreement with the UK. We may well end up trading under the global rules of the World Trade Organization (WTO), which will mean paying higher tariffs (taxes), more expensive goods, and trade with EU exceptionally difficult. Unless of course, the government abandon the Internal Market Bill, and restore their position under the NI protocol… if only.

This article is intended for guidance only and must not be relied upon for specific advice.

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