Enforcement of EU-derived rights in a post Brexit UK: an EU perspective of aspects of the European Union (Withdrawal) Bill

26 Sep 2017

On 18 September, Christopher Muttukumaru CB gave a presentation to the FIDE Foundation in Madrid on the enforcement of EU-derived rights in a post Brexit UK context. His co-speaker was Professor Pedro de Miguel Asensio, Professor of EU Law at Complutense University, Madrid.

In summary, Christopher’s presentation covered a number of issues, including the following. The EU acquis as it exists on the effective date of Brexit will become UK national law by virtue of the European Union (Withdrawal) Bill. But the acquis may be amended as it is converted into retained national law; moreover it would be open to the UK Parliament to make further modifications in the future.  The UK considers the CJEU should not have a (direct) post-Brexit enforcement role. Nor, it seems, should the Commission.

Enforcement of rights will therefore become a matter for the national courts and for any regulatory bodies which are given powers in substitution for those of the Commission. The national courts will be bound to give supremacy to rulings of the CJEU in respect of retained EU law provided that those rulings were given before Brexit day. But the UK Supreme Court will alone have power to refuse to follow pre-Brexit rulings of the CJEU. For the future, the UK courts may take account of EU law, but need not do so.

Yet the UK wishes to have full access to the Single Market in the transitional period following Brexit.  There is an obvious risk to the consistency of law making in a post Brexit future unless the UK is able to guarantee that it would follow post-Brexit laws adopted by the EU in the transitional period. There is also an obvious risk to the uniformity of approach by the courts. It seems doubtful that the EUWB, as drafted, will provide adequate assurance to the EU’s negotiators. For example, having regard to the UK Government’s deregulatory aspirations, will the UK continue to adhere to the Single Market rules as they apply to the EU27?