UK Withdrawal from the EU: Supremacy, Indirect Effect and Retained EU Law
| Published date | 01 May 2022 |
| Author | Asif Hameed |
| Date | 01 May 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12719 |
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Modern Law Review
DOI:10.1111/1468-2230.12719
LEGISLATION
UK Withdrawal from the EU: Supremacy, Indirect
Eect and Retained EU Law
Asif Hameed∗
The UK has left the EU and its withdrawal is managed by the European Union (Withdrawal)
Act 2018 (EUWA).The EUWA domesticates a snapshot of EU law as ‘retained EU law’.The
supremacy principle is also domesticated, and benets retained EU law in its interaction with
prior (pre-IP completion day) domestic law. The domesticated supremacy principle’s explicit
connement in this backward-facing way is designed to maintain continuity with the previous
state of aairs, during EU membership,while also allowing for future regulatory divergence. In
spite of this, however,this article argues that retained EU law has important ramications vis-
à-vis future UK Acts of Parliament through the forward-facing operation of the domesticated
doctrine of indirect eect which the EUWA does not conne.The upshot is that the capacity
to diverge in future fromretained EU law is legally more constrained than might otherwise have
been anticipated.
INTRODUCTION
On 31 January 2020 at 11pm the UK ceased to be a Member State of the
European Union.It has faced a challenging legislative task to eect withdrawal.
Given decades of EU membership the exercise has been likened to removing
aneggfromanomelette.
1The principal UK statute is the European Union
(Withdrawal) Act 2018 (EUWA) which under section 1 repeals the European
Communities Act 1972 (ECA), the means by which EU law had taken eect
domestically. Ahead of the 31 January 2020 exit date the UK and EU also
managed to conclude a Withdrawal Agreement providing for a transitional
period – described in UK leg islation as the implementation period – that lasted
until 31 December 2020 at 11pm (IP completion day).2During the interval
until IP completion day, EU law continued to apply in the UK according to
the terms of the Withdrawal Agreement3– which took eect domestically
∗Lecturer in Law, University of Southampton. Thank you to the anonymous reviewers for their
valuable feedback and encouragement.
1 J. D’Urso, ‘Brexit: Ex WTO chief Pascal Lamy in “no deal” warning’ BBC News, 16 March
2017 at https://www.bbc.co.uk/news/uk-politics-39295257 (last visited 6 January 2022).
2 The UK and the EU agreed on the terms of the Withdrawal Agreement on 17 October 2019.
The date for the end of the transitional period, IP completion day, is set down in the European
Union (Withdrawal Ag reement) Act 2020, s 39(1).
3 See in particular Arts 127(1) and (3).
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022)85(3) MLR 726–754
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Asif Hameed
under the European Union (Withdrawal Agreement) Act 2020 – rather than
the UK being an EU Member State. This interval provided a window for
negotiations to take place between the EU and the UK as a third state regarding
a future trading relationship.The EU-UK Trade and Cooperation Agreement
was reached on 24 December 2020, with the treaty being implemented in the
UK through the European Union (Future Relationship) Act 2020 that was
fast-tracked through Parliament in a single day:30 December 2020.
Although abbreviated this chronology underscores the complex and at times
tumultuous character of the withdrawal process.And while we have put behind
us the high drama of knife-edge evening votes in the House of Commons on
the withdrawal agreement4or the unlawful attempt to prorogue an uncoop-
erative Parliament in autumn 2019,5a renewed array of frictions is now being
laid bare as attention post-withdrawal turns towards the degree to which the
UK should pursue regulatory divergence. Within the same government that
secured withdrawal there is open discord at the highest levels. The resignation
of the government’s chief negotiator with the EU in December 2021 was mo-
tivated by ‘concerns about the current direction of travel’.6‘The challenge for
the Government now is to deliver on the opportunities [EU withdrawal] gives
us’, he wrote, before recommending that we ‘move as fast as possible to … a
lightly regulated, low-tax, entrepreneurial economy’.7
It is against this setting that we consider the EUWA’scr itical rolein regulating
the aftermath of withdrawal. The UK legal system has been absorbing EU law
from the date of accession, 1 January 1973, to its departure in 2020. In order to
minimise disruption following withdrawal the EUWA strives to ensure that the
same norms apply on expiry of the transitional per iod – IP completion day – as
on the day prior. To achieve this snapshot the EUWA establishes a category of
‘retained EU law’,by which it converts EU law as it stands immediately before
IP completion day into domestic law, and also preserves domestic measures
giving eect to EU obligations.Alongside this the EUWA seeks to ensure on IP
completion day that retained EU law norms interact with pre-existing domestic
law – pre-IP completion day law – similarly to the way in which EU law had
hitherto operated on domestic law. In particular,the EUWA domesticates the
principle of supremacy and indicates that this principle benets retained EU
law in its interaction with pre-IP completion day law.Indeed the domesticated
supremacy principle is expressly conned to operating in a backward-facing
way on pre-IP completion day law only. Legal continuity with the prior state
of aairs during EU membership is thereby secured, while also allowing for
subsequent disentanglement and potential divergence.
We argue that although the EUWA connes the domesticated supremacy
principle in a backward-facing way, retained EU law also has important
4 Under EUWA, s 13 (now repealed), any withdrawal ag reement could only be ratied if, among
other things, it was‘approved by a resolution of the House of Commons on a motion movedby
a Minister’.These were known as ‘meaningful votes’,and in a remarkable period from January to
March 2019 the government brought a motion three times and was defeated on each occasion.
The Prime Minister subsequently announced her resignation in May 2019.
5R (Miller) vPrime Minister; Cher ry v Advocate General [2019] UKSC 41.
6 D.Frost, Letter of Resignation to the Prime Minister,18 December 2021.
7ibid.
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(3) MLR 726–754 727
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