Interpretation of law post-Brexit

The publication of the European Union (Withdrawal) Bill and the UK Government’s position paper on ongoing EU proceedings sheds some light on how the UK courts will approach interpreting EU legislation retained in the UK post-Brexit, but questions and difficulties remain.

One question that Brexit throws up for both lawyers drafting contracts and those involved in disputes is how laws originating in the EU, but transposed into English law under the European Union (Withdrawal) Bill, should be interpreted. Prior to Brexit, of course, the English courts would look to the recitals of the EU legislation, relevant decisions of the Court of Justice of the European Union (CJEU) and even other language versions of the text.

Post-Brexit, the situation is not so clear. The Government has repeatedly emphasised that the CJEU will have no jurisdiction over the UK, though in recent days cracks have started to appear in that over concerns, in particular, over the UK’s membership of Euratom. Can the UK courts then consider CJEU authorities on points of law that have been transposed into UK law upon Brexit?

In its March 2017 White Paper the Government suggested that decisions of the CJEU prior to the date of Brexit would have the same authority as Supreme Court decisions on legislation which had been retained in UK law. Decisions of the CJEU after Brexit would be of no authority, effectively thereby freezing EU jurisprudence as at 29 March 2019.

We now have the European Union (Withdrawal) Bill, which states that courts and tribunals will not be bound by decisions of the CJEU made on or after “exit day”, but can have regard to them if they consider it appropriate. The Supreme Court will not be “bound by any retained EU case law”, meaning that if a party can get its case heard by the Supreme Court, an entirely new interpretation of the retained EU law may be argued for. The Supreme Court must, however, treat the EU caselaw as though it were one of its own previous decisions when deciding whether to depart from it.

This is echoed in the UK Government’s Position Paper on Ongoing Union Judicial and Administrative Proceedings, also published on 13 July 2017. This states that for any UK cases that are pending before the CJEU on the day the UK leaves the EU, it is envisaged that it may be right to continue to a CJEU decision in certain circumstances. However, the CJEU should not be allowed to rule on UK cases which were not already before the court on the leave date, even where the facts arose before exit.

Anyone considering requesting a reference to the CJEU still has time then. But if the CJEU’s decision comes after Brexit, it would appear from the Bill that it will not bind courts or tribunals in the UK.

Another aspect of interpreting such laws will be difficulties that arise where they refer to EU bodies that no longer have any relevance to the UK, or use principles of reciprocal rights between EU states or citizens, which will no longer apply. The Bill’s answer to this is that Ministers should have the power to “correct” such legislation by creating statutory instruments when issues arise. In reality, the number of these “deficiencies” in the EU legislation transposed into UK law will be huge. The powers thus proposed for government ministers are likely to be very controversial: in essence the law could be drafted by executive order wherever the “retained EU law” law no longer worked.

One alternative proposal to deal with this is that a UK body should be identified as the most appropriate to adopt the role of any EU institution that may be referred to in the retained EU law. The Bill could then simply contain a list of bodies that should be read into the existing law in place of the now irrelevant EU institutions. The practicality of this approach is open to question, and it addresses only one form of deficiency that the retained law may have.

Industry bodies and non governmental organisation (NGOs) will, of course, point out deficiencies in the transposition of EU legislation where it affects their interests, but the Government is unlikely to be able to act upon all of these. One thing is certain - a complete review of all the EU law that will be transposed to identify such deficiencies before March 2019 is an impossibility. “Deficiencies” in the law, and how the law should be interpreted around them, is likely to be at the centre of many disputes, both political and legal, post-Brexit.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.