Clarifying the Duties of the UK Judiciary Post‐Brexit: Lipton and Anr v BA City Flyer Ltd
| Published date | 01 September 2022 |
| Author | Sara Drake,Jo Hunt |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12705 |
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Modern Law Review
DOI:10.1111/1468-2230.12705
Clarifying the Duties of the UK Judiciary Post-Brexit:
Lipton and Anr vBA City Flyer Ltd
Sara Drake∗and Jo Hunt†
The Court of Appeal’s judgment in Lipton and Anr vBA City Flyer Ltd marks a new chapter in
UK constitutional law. It provides the rst judicial interpretation of section 29 of the European
Union (Future Relationship) Act 2020. This general implementation clause aims to ensure the
timely incorporation of the EU-UK Trade and Co-operation Agreement 2020 (TCA) into do-
mestic law, by requiring ‘existing domestic law’ to have eect ‘with such modications as are
required for the purposes of implementing’ the TCA.This case note examines the conceptuali-
sation of the legal obligation in section 29, as reected in Green LJ’s opinion.We argue that the
judgment also makes a welcome attempt to promotelegal cer tainty,providing a clear sequencing
of the steps to be taken by the UK judiciary when interpreting EU retained law post-Brexit,
but nevertheless introduces some elements of potential confusion that require clarifying.
INTRODUCTION
The United Kingdom (UK) nally departed from the European Union (EU)
on 31 December 2020, with the coming to an end of the Implementation Pe-
riod foreseen under the EU-UK Withdrawal Agreement 2020.1This brought
into eect from 1 January 2021 a new complex legal regime consisting of a
range of inter-dependent legal instruments2designed to give eect to the UK’s
(staged) withdrawal from the EU3and its new trading and security relationship
set out in the EU-UK Trade and Co-operation Agreement 2020 (TCA).4The
UK’s dualist approach to international law means the TCA only takes eect
within the UK legal order on the back of a domestic legal act. This is achieved
through the EU (Future Relationship) Act 2020 (EU (FR) Act 2020), which
also provided for a derogation from the standard process of Treaty ratication
under the Constitutional Reform and Governance Act 2010. The pressure to
∗Senior Lecturer in Law, Cardi University’s School of Lawa nd Politics
†Professor in Law,Cardi University’s Wales Governance Centre, School of Law and Politics
1 Withdrawal Ag reement 2020, Art 126.
2 For accounts of this legislative pot pour ri, see for example P.Eleftheriadis, ‘Eleven Types of post-
Brexit EU law’Oxford Business Law Blog,8 January 2021 at https://www.law.ox.ac.uk/business-
law-blog/blog/2021/01/eleven-types-post-brexit-eu- law (last visited 26 July 2021).
3 The EU (Withdrawal) Act 2018; EU (Withdrawal Agreement) Act 2020; Protocol on Northern
Ireland and the EU (Withdrawal) Act 2018 Exit Day Regulations 2019
4 The TCA was agreed between the parties on Christmas Eve 2020 and avoided the prospect of
a future relationship on WTO terms (‘no-deal’ Brexit). There is provision for the Agreement to
be reviewed every ve years. It is accompanied by a Nuclear Co-operation Agreement (NCA)
and a Security of Classied Information Agreement (SCIA).
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited. (2022) 85(5) MLR 1261–1273
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