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The status of EU law in the UK after withdrawal

Author: 
Editorial Staff

Perhaps the most important question arising out of the whole withdrawal issue is this. What status will EU law have, in the UK, after Exit Day?

The answer to the question is, on the face of it simple. According to the

Section 5
(1) The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.
(2) Accordingly, the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day.
(3) Subsection (1) does not prevent the principle of the supremacy of EU law from applying to a modification made on or after exit day of any enactment or rule of law passed or made before exit day if the application of the principle is consistent with the intention of the modification.

There are special provisions relating to the Charter of Fundamental Rights which is not a part of UK domestic law and, specifically "any fundamental rights or principles which exist irrespective of the Charter" and if Courts have referred to the Charter, any references in Judgments are to be read as if they are references to any corresponding rights or principles.

Taking the last point first, what it means is the EU laws, etc. which have not been formally adopted by the UK Parliament or which have not been imposed by Directive or EU Regulation cannot be considered adopted into UK law simply because a Court Judgment has included a reference to it. In short, judges do not make statutes, which is, of course, the proper position.

The first part of Clause 5 revokes the requirement that all Directives and Regulations made by the EU in its various establishments take precedence over national law will cease as from exit day. On the face of it, that removes the ability of the EU to tell the UK what laws it can and cannot have. If that was all that the section said, then that would meet one of the principle aims of those wanting to leave the EU. But it's not all it says. The first part also says that it only applies to laws, etc. passed after exit day.

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