Clause 26 Withdrawal Agreement Bill

(This contrasts with other provisions of the bill, which allow regulations on other issues to be adopted up to two years after the end of the transposition period (e.g. B clauses 3 and 4)). However, to the extent that there are already ECJ decisions deemed problematic, they could be dealt with in the current bill. If there are no such decisions that can be identified at this stage, we can doubt the necessity of power. The importance of Article 26 goes beyond its possible legal effect. The European Union (Withdrawal) Act 2018, which was put in place by Theresa May`s government, offers a system to maximise legal continuity and security as soon as the UK, as a member state or through transition, is no longer subject to EU law. Section 6 of the 2018 Act required UK courts, with the exception of the Supreme Court and the Supreme Court of Law, to comply with EU case law in interpreting EU law. If the government decides that it does not wish to maintain a certain EU law or a judgment of the ECJ, it is free to ask Parliament to legislate. The decision to include Article 26 of the CEA could indicate that the Johnson government wants to move away from the legal presumption of continuity. This is in line with the Prime Minister`s stated position that one of the priorities for the future relationship is to avoid alignment with EU law or any form of ECJ case law. From this point of view, Article 26 is one of the first signs of the constitutional impact of a policy of direct derogation from EU law after the expiry of the transposition deadline.

The new clause would allow for a sweeping change that would create considerable uncertainty in day-to-day litigation in the country`s courts. The full constitutional implications of this approach for the future relationship will be clearer over the next 12 months. However, some provisions of the AEF illustrate some of the constitutional difficulties that could arise from this approach. Clause 5 of the CEA provides that the Withdrawal Agreement has direct effect and priority in UK law (making Article 4 of the Withdrawal Agreement effective). National courts will therefore interpret the Withdrawal Agreement in the way they interpreted EU law when the UK was a Member State. In addition, the legal effect of the European Communities Act 1972 remains in force under the conditions of the transition period by clause 1 of the CEM. This is difficult to bring into line with Article 132 of the Withdrawal Agreement, which expressly provides for the possibility of a single extension of up to two years. . . .

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