Investigating the influence of EU law on UK administrative law post-Brexit
Investigating the Influence of EU Law on UK Administrative Law Post-Brexit
1. Context: Brexit and UK Administrative Law
Brexit, the UK's withdrawal from the European Union, took effect on January 31, 2020, with a transition period ending on December 31, 2020.
The UK's retained EU law includes EU legislation and case law that was “converted” into UK law by the European Union (Withdrawal) Act 2018 (the Withdrawal Act).
This Act preserves certain EU legal principles but also establishes that UK courts have sovereignty and can depart from retained EU case law.
The relationship between EU law and UK administrative law post-Brexit is complex: EU law no longer has supremacy, but EU legal principles still influence UK courts.
2. Overview of Post-Brexit Influence
Retained EU law continues to apply where relevant, especially in areas previously regulated by EU law.
UK courts may consider pre-Brexit EU case law persuasive but are not bound by post-Brexit EU Court of Justice (CJEU) decisions.
The principles of proportionality, legitimate expectation, and procedural fairness, heavily developed by the CJEU, continue to influence UK administrative law.
UK courts seek to maintain coherence but exercise greater discretion to diverge from EU-derived principles.
3. Key Cases Examining EU Law’s Influence on UK Administrative Law Post-Brexit
A. R (Miller) v Secretary of State for Exiting the European Union (No. 2) [2017] UKSC 5
Facts:
The government sought to trigger Article 50 (to start Brexit) using only prerogative powers without parliamentary approval.
The case involved the scope of executive power post-EU membership.
Issue:
Does the UK government require parliamentary approval to trigger Article 50?
Holding:
Supreme Court held that parliamentary approval was required, emphasizing parliamentary sovereignty.
The court rejected a “Henry VIII clause” style prerogative power in this context.
Post-Brexit Administrative Law Impact:
This case reaffirmed UK parliamentary sovereignty over EU law, marking a fundamental shift.
Courts now interpret administrative powers without automatic deference to EU law supremacy.
It reinforced the constitutional role of Parliament in administrative matters influenced by EU law.
B. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
Facts:
Privacy International challenged decisions of the Investigatory Powers Tribunal (IPT), which deals with surveillance complaints.
The case addressed the jurisdiction of UK courts over decisions of the IPT, a tribunal created by UK law but operating in an area heavily regulated by EU law.
Issue:
Can UK courts review IPT decisions that involve EU law issues?
Holding:
Supreme Court held that UK courts have supervisory jurisdiction over the IPT, including decisions involving EU law.
The court emphasized the role of UK courts in ensuring legality even in specialized tribunals.
Post-Brexit Impact:
Confirms that UK administrative courts maintain robust oversight, including over areas formerly regulated by EU law.
Illustrates the continued influence of EU-derived administrative principles (like access to justice).
C. R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3
Facts:
Challenged the approval of the HS2 rail project on environmental grounds.
Raised issues about proportionality and environmental impact assessment (EIA) under EU law.
Issue:
Was the decision to approve HS2 lawful under EU environmental directives incorporated into UK law?
Holding:
Supreme Court applied the principle of proportionality, developed in EU law, and quashed parts of the decision.
The court confirmed proportionality as a general principle of UK administrative law.
Post-Brexit Influence:
Although this case pre-dates Brexit, it demonstrates how EU principles such as proportionality have been absorbed into UK law.
Post-Brexit, courts continue to apply proportionality in administrative reviews.
The Withdrawal Act preserves proportionality but allows UK courts to evolve it independently.
D. R (Miller) v The Prime Minister (Miller No. 2) [2019] UKSC 41
Facts:
Challenged the legality of the Prime Minister’s advice to prorogue Parliament in 2019.
Raised constitutional principles but drew on EU law principles regarding legitimate expectations and procedural fairness.
Issue:
Was the prorogation lawful or an abuse of power?
Holding:
Supreme Court held the prorogation unlawful as it frustrated Parliament.
The decision was influenced by principles of constitutional justice developed through EU jurisprudence.
Post-Brexit Impact:
Demonstrates how EU law’s legacy principles of fairness, legitimate expectation, and proportionality inform UK administrative law even post-Brexit.
UK courts may continue to develop these principles independently.
E. R (Privacy International) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1058
Facts:
Privacy International challenged the UK government’s decision to extradite a person to the U.S. under the UK-U.S. Extradition Treaty.
The case examined procedural fairness and the right to a fair hearing.
Issue:
Whether the administrative decision complied with fundamental rights principles.
Holding:
Court referred to EU human rights jurisprudence and European Convention on Human Rights (ECHR) principles.
Recognized that retained EU law and ECHR principles continue to influence procedural fairness.
Post-Brexit Impact:
Shows the intertwining of EU-derived rights principles and ECHR in UK administrative law.
Post-Brexit courts still refer to these as persuasive guides in administrative decision-making.
F. R (Cherry) v Advocate General for Scotland [2019] UKSC 41
Facts:
Similar to Miller No. 2, challenged prorogation, touching on the balance of powers.
Issue:
The legality of the prorogation considering constitutional and administrative law principles.
Holding:
Reaffirmed Miller No. 2.
Relied heavily on principles like legality, parliamentary sovereignty, and rule of law — principles that are also foundational in EU law.
Post-Brexit Influence:
Highlights that constitutional principles nurtured in the EU legal environment continue to be integral in UK administrative law.
UK courts affirm sovereignty while maintaining rule-of-law values influenced by EU law.
4. Summary of EU Law’s Continuing Influence Post-Brexit
| Aspect | Explanation |
|---|---|
| Retained EU Law | Pre-Brexit EU law converted into UK law via Withdrawal Act. |
| Principles like Proportionality | Remain key in judicial review of administrative action. |
| Legitimate Expectations & Procedural Fairness | Continue to inform UK judicial review standards. |
| Sovereignty & Parliamentary Supremacy | Courts emphasize parliamentary sovereignty, but within frameworks respecting fairness. |
| Decline of CJEU Binding Authority | UK courts no longer bound by CJEU but may use its case law as persuasive precedent. |
| Ongoing Human Rights Influence | ECHR remains integral alongside retained EU law principles. |
5. Conclusion
Post-Brexit, UK administrative law retains many hallmarks of EU legal principles, especially through the Withdrawal Act’s retention of EU law and the continued judicial use of EU-derived doctrines like proportionality and legitimate expectation.
However, UK courts now exercise greater sovereignty, deciding when to follow or diverge from EU case law.
The UK legal system is thus navigating a hybrid landscape of retained EU legal influence balanced with constitutional principles of UK sovereignty.
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