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A. Gillespie & S. Weare, The English Legal System (Oxford University Press, 2021). E. Allbon & S. Kaur-Dua, English Legal System (Pearson 2020). C. Price, SQE – The Legal System of England and Wales (4e, University of Law, 2024).
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In this video what I want to do is go a little bit more towards the modern day when thinking
about the historical development of the English legal system and focus on the impact of the
European Union and EU law on the English legal system and this is really split into two fundamental
conceptualizations. On the one hand we're going to be thinking about the impact of joining the
European Union and what this did to the English legal system and then on the other hand we'll
talk about the impact of leaving the European Union and what this did to the English legal
system because of course EU law still has a place in the English legal system even though we have
left the European Union given the fact that we were so deeply integrated into EU law for for so
long and so the mechanism by which we retain certain EU laws is very very important to understand.
So from a historical perspective then the European Union of course develops really from the beginnings
of the 1950s and goes into developed more and more and more as time goes on from the European
community all the way until European Union and our relationship to the European Union the UK's
relationship really comes into fruition during the passage of the European Communities Act in 1972.
EU law at the time was called community law and it was part of the UK's domestic legal system
by virtue of the European Communities Act. What the European Communities Act is is a piece of
legislation or was really a piece of legislation passed by parliament and it was an act that made
EU treaties and EU legislation by extension directly applicable part of UK law. Under this
regime then the principle of EU primacy or supremacy meant that EU law was supreme over that
of domestic legislation. Now we can understand why by the way that a supranational institution like
the European Union requires its legislation to be supreme to have primacy over domestic legislation
and this was established by early cases like Costa and ENAL for example and essentially the idea here
is that if all these legal systems have the ability to overrule EU law then EU law renders
itself meaningless by extension. The idea of having this sort of overarching legal system
that regulates areas of EU competence is a requirement for the EU to even exist.
So this meant that where EU law conflicted with domestic law in the United Kingdom,
EU law would prevail. Now you might be thinking well surely that's a violation of parliamentary
sovereignty. Parliament is sovereign in the UK when it comes to lawmaking authority not the
European Union and you'd be technically right except for the fact that the European Union did
not just impose itself on the United Kingdom without parliamentary approval. The idea here is
that the European Communities Act is the mechanism by which the European Union was able to
claim supremacy, claim primacy over that of domestic statutes. Additionally the Court of
Justice of the European Union, because of course it is a product of a feature of the establishment
of EU treaties, also has a very important interpretive and application-based role
in terms of through the United Kingdom. Courts are bound or were bound should I say by decisions
from the Court of Justice of the European Union. General principles of EU law were also part of
this interpretive framework and additionally UK courts would be able to refer to EU law
questions to the European Court of Justice under what is known as the Preliminary Reference
Procedure which is found in Article 267 of the Treaty on the Functioning of the European Union.
What then happens after Brexit is quite a long and arduous process from 2016 all the way through to
2018-2019 in which Brexit is not dealt with but then eventually gets sorted and the first point
is the Withdrawal Act. The European Union Withdrawal Act from 2018 plays a central role
in not only our withdrawal from the European Union but also our place and the current place of EU law
in the UK's broader legal system. It uses a mechanism, the European Union Withdrawal Act
and subsequent legislation that we'll get to, uses a mechanism known as retained EU law.
It essentially seeks to try and sever the UK from the European Union while also
looking to allow for certain bits of EU law to remain part of and functional within the
United Kingdom albeit without the oversight of European judicial authority from the
Court of Justice for example. So section 6 for example of the of the European Withdrawal Act
suggests that retained EU law includes direct EU legislation or EU regulations
as it applied immediately before the end of the transition period, EU derived domestic legislation
so for example UK statutes or statutory instruments that are implemented through the
auspices of an EU directive as well as directly effective rights. These are rights that
individuals derive from EU law which are enforceable in UK courts and by extension of
that fact because we were part of the European Union they were enforceable in those courts and
now form part of the English legal system, they form part of the common law and other parts of
the system itself. The Act provided something known as a snapshot mechanism essentially freezing
EU law as it stood at the end of the transition period. The transition period ended on the 31st
December 2020. Those provisions that existed at that point at the end of the transition period
became part of UK domestic law even if the EU law new EU legislation was not going to be binding
after that date. So that's the kind of system that existed that while the UK remained part
of the European Union EU law would continue to apply. The snapshot mechanism meant that
essentially whatever EU law was applicable to the United Kingdom at the end of the transition period
is the EU law that still remains part of the United Kingdom. We'll get to how this
is changed over time in a second. We also see the interpretation then, well how do we interpret
this new EU law or this retained EU law? Well UK courts were required to interpret retained EU
law in a purposive way taking into account the underlying objectives of the original EU
legislation. Courts may also refer to case law from the European Court of Justice but for cases decided
before exit day when interpreting retained EU law. They could not start looking at future cases
because then that would imply that the European Court of Justice is still applicable in the United
Kingdom. So with all this then, what then changes? Well in 2023 we get another piece of legislation
called the Retained EU Law Revocation and Reform Act and this is a legislative reform that
adds a bit more strict applicability to the retained current EU law that exists. So for example
it was passed in order to allow the government to modify, to revoke or to restate or to even replace
retained EU law. Essentially giving the UK government a bit more power and authority to do
what they want with EU law that exists or that may still exist or that may be replaced or that may be
revoked etc etc. It also abolishes, this act also abolishes the principle of supremacy of retained
EU law. From the 31st December 2023 retained EU law is no longer automatically higher than other
UK law. It is a change that of course reflects a shift towards a greater emphasis on parliamentary
sovereignty. The government and parliament have reasserted that no special status can be afforded
to EU legislation or retained EU law over UK legislation. It also removes a number of aids
to interpretation that previously had derived from the EU legal system. The courts, UK courts,
no longer rely on these EU originated principles when looking at interpreting the law that remains.
Essentially making the retained EU law more just UK law. Just trying to make it more like it is
basically just UK law. It might have had its origination in the European Union somewhere
but it is now part of the United Kingdom. It should be treated exactly like any other law
that exists inside the United Kingdom.
