BREXIT AND ITS EFFECT ON THE LAW
Brexit in a nutshell
The European Union (Withdrawal) Act 2018 (‘the 2018 Act’) and the European Union (Withdrawal Agreement) Act 2020 (‘the 2020 Act’) provided the main legislative engine by which the United Kingdom cut itself off from the European Union. The broad picture is that the United Kingdom’s membership terminated by agreement at 11pm[1] on 31 January 2020, but that for the remainder of calendar year 2020 a Withdrawal Agreement made provision for an ‘Implementation Period’. According to this, until implementation was declared to be ‘Completed’, the law in the United Kingdom was to be functionally identical to what it would have been if the United Kingdom had remained a Member State. At the end of the Implementation Period, which is to say on Completion Day, which at the date of writing is set as 31 December 2020, detailed legislation prescribes, as the default position, that much of EU law, and EU-derived law, as it stands on that date, will be retained as the domestic law of the United Kingdom. European legislation made after that date will have no effect in England, though subsequent decisions of the European Court bearing on retained EU laws may be taken notice of by English courts. Such is the law in broad outline.
The 2018 Act gave ministers a broad statutory power to amend or revoke EU laws, which would otherwise qualify for retention as laws of the United Kingdom, where the law liable to be retained would be defective or deficient. That power was exercised extensively in relation to the principal EU law, and EU-derived laws, with which this book is concerned. As a result, and as is further explained below, and unless events take place for which the 2018 Act and the 2020 Act make no current provision, the law of jurisdiction examined in detail in Part B of this book, in Chapters 3 to 19, would cease to be applicable to legal proceedings instituted after Completion Day, the rules in Part C expanding to fill the void thus created. The rules of EU law as applied to the effect of judgments from the courts of Member States, examined in Part E in Chapter 33, will have a much longer run-off period, but will gradually cease to operate in the United Kingdom. The gap will be filled by the other statutory systems for the recognition and enforcement of judgments, failing which, by the rules of common law, as all described in Part E.
In 2020 Parliament adopted the Private International Law (Implementation of Agreements) Act 2020, to provide a statutory framework for the United Kingdom to adhere, in its own right (by which it had been bound by virtue of its being a Member State of the European Union) to certain international Conventions. The 2020 Act applied to the 2005 Hague Convention on Choice of Court Agreements,[2] and to certain other instruments dealing with family law. On 8 April 2020, the United Kingdom applied to accede to the Lugano II Convention, which would have the effect of reinstating a version of the European rules on jurisdiction and judgments: in effect, the United Kingdom would, alongside Iceland, Norway and Switzerland, subscribe to a parallel Convention. Regulations made under the 2020 Act would provide a convenient basis for the necessary steps to be taken; at the time of writing, both the joining of the Lugano Convention and the statutory basis for giving it effect in English law are undecided.
- [1] The curiosity of the time is that GMT is one hour behind the time in most of the Member States. It was their midnight, not that of the United Kingdom, which was in the agreement, which is telling. 2 Legislation, jurisprudence of the European Court, and principles of European law in particular. 3 Which is to say, national laws made to implement, or to complement, European law.
- [2] The United Kingdom deposited an instrument of ratification in 2018, and several declarations (as the date of Exit Day slipped) during 2019, and withdrew all of them on 31 January 2020. On that date it also notified an intention to deposit a fresh instrument of accession during 2020, which it did on 28 September 2020. The instrument which purported to incorporate the Convention into English law (Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018, SI 2018 No 1124), has not been revoked, but the Convention was given (or re-given) effect in English law by Private International Law (Implementation of Agreements) Act 2020, which inserted the 2005 Hague Convention into the Civil Jurisdiction and Judgments Act 1982. See further, Chapter 25, below. 2 2018 Act, Section 1. 3 2018 Act, Section 20 as amended by SI 2019 No 1423. 4 2018 Act, Section 1A, inserted by 2020 Act, Section 1. 5 2020 Act, Section 39. 6 2018 Act, Section 15A, inserted by 2020 Act, Section 33. 7 2018 Act, Section 3(1), as amended by 2020 Act, Section 25(2)(a). 8 2018 Act, Section 3(1), as amended by 2020 Act, Section 25(2)(a).
