The European Union (Withdrawal) Bill: Supremacy and the Court of Justice

This briefing paper examines:

• Clause 5 which would change to the role of the principle of the supremacy of EU law post-exit (the elements of clause on the Charter of Fundamental Rights are covered in European Union (Withdrawal) Bill: the Charter, general principles of EU law, and ‘Francovich’ damages (CBP8140);
• Clause 6 which would provide instructions to the courts on the relevance of judgments of the Court of Justice of the European Union (CJEU) to the task of interpreting retained EU law post-exit.
• The HC Library’s Briefing, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill, and was published on 1 September 2017.

A central aim of legislating for Brexit is to ensure that UK institutions have the final say over the laws that apply in the UK. The EUW Bill is designed to ensure that Parliament and domestic courts, rather than the EU’s institutions, decide on the content and meaning of the law post-Brexit. During the referendum campaign in 2016, the successful Vote Leave campaign argued that the CJEU “overruled UK laws” and that the principle of the supremacy of EU law “stops the British public from being able to vote out those who make our laws”.[1]

Taken together clauses 5 and 6 provide for a new relationship between domestic law and EU law. Once the UK is no longer a member of the EU, and the European Communities Act 1972 (ECA) is repealed, EU law will no longer be supreme over new laws made by Parliament. Further, UK courts will no longer be bound to follow the judgments of the CJEU handed down after exit day.

This Bill includes measures that enable retained EU law to have priority over some domestic law in certain circumstances (clause 5(2)), and that CJEU judgments given before exit day will continue to be binding precedents in most domestic courts (clause 6(3)). Clause 6(2) also enables a domestic court to take account of CJEU judgments given after exit day “if it considers it appropriate to do so”.  

Just as the status of EU law was clarified by the courts it is likely the status of retained EU law and its relationship with other constitutional legislation will be tested and clarified in the courts.

There is some uncertainty over how the provisions in clauses 5 and 6 of this Bill would interact with the withdrawal agreement, and the domestic legislation needed to implement it.

[1]     http://www.voteleavetakecontrol.org/briefing_control.html