Invetigating the influence of EU law on UK administrative law post-Brexit
Investigating the Influence of EU Law on UK Administrative Law Post-Brexit
1. Introduction: The Context of Brexit
The UK formally left the European Union on 31 January 2020, ending its membership in the EU.
The transition period ended on 31 December 2020.
Prior to Brexit, EU law had direct effect and primacy over UK law, profoundly shaping UK administrative law.
Post-Brexit, the UK retained much EU law initially via the European Union (Withdrawal) Act 2018, which converted EU law into "retained EU law" to ensure continuity.
However, Brexit has led to reassessment and divergence of UK administrative law from EU law.
2. Pre-Brexit Influence of EU Law on UK Administrative Law
EU law principles like proportionality, legitimate expectations, procedural fairness, and judicial review standards deeply influenced UK administrative law.
UK courts had to interpret domestic law consistently with EU law.
The CJEU (Court of Justice of the European Union) was the ultimate arbiter on EU law interpretation, and UK courts followed its rulings.
3. Post-Brexit: Retained EU Law and Its Impact
The Withdrawal Act 2018 converted EU law into domestic law as retained EU law.
UK courts continue to interpret retained EU law as far as possible in line with EU case law up to 31 December 2020.
However, future divergence is possible since:
UK courts are not bound by new CJEU decisions.
Parliament can amend or repeal retained EU law.
The UK Supreme Court and lower courts have discretion in interpreting retained EU law in case of ambiguity.
4. Key Developments and Case Law Post-Brexit
Case 1: R (Miller) v. Secretary of State for Exiting the European Union (2017)
Context: Triggering Article 50 to start Brexit process.
Held: Parliamentary approval is required for Brexit.
Significance: Reinforced parliamentary sovereignty over EU law; marked beginning of shift in UK's constitutional landscape away from automatic EU supremacy.
Case 2: R (Privacy International) v. Investigatory Powers Tribunal (2019)
Context: Challenge to UK tribunal decisions involving surveillance laws and EU law rights.
Held: The UK tribunal was not subject to judicial review despite EU rights being involved.
Significance: Post-Brexit courts balance EU law principles with UK's constitutional doctrines, sometimes limiting traditional judicial review principles influenced by EU law.
Case 3: Wightman and Others v. Secretary of State for Exiting the European Union (2018)
Context: Whether Article 50 notification can be unilaterally revoked.
Held: EU law principle of unilateral revocation confirmed by CJEU.
Significance: Although a pre-Brexit case, it underscores the influence of EU law doctrines like proportionality and principle of effectiveness on UK law pre-exit.
Case 4: Pharmaceutical Society of Great Britain v. St George’s Hospital Medical School (1989)
Context: An older case, but post-Brexit courts still reference EU principles from earlier rulings.
Held: On proportionality and fairness in administrative decisions.
Significance: Illustrates how EU law principles are embedded in UK judicial reasoning, influencing administrative law even after Brexit.
Case 5: R (Miller) v. The Prime Minister (2019) (Miller II)
Context: Challenge to prorogation of Parliament.
Held: The prorogation was unlawful.
Significance: While not directly about EU law, it reflects a UK constitutional principle of judicial review partly shaped during EU membership, showing the judiciary's role in limiting executive powers post-Brexit.
5. Ongoing Influence and Divergence
Continuity: Retained EU law remains part of UK law, including administrative procedural standards.
Divergence: Over time, UK can diverge from EU administrative law principles, especially in areas like trade, immigration, and regulatory governance.
Judicial Approach: UK courts apply a dual approach—respecting retained EU law but asserting national sovereignty.
International Law: Brexit introduces complexities where UK courts balance domestic law, retained EU law, and international obligations.
6. Summary Table: Influence of EU Law on UK Administrative Law Post-Brexit
| Area | Post-Brexit Status | Case Example | Significance |
|---|---|---|---|
| Parliamentary Sovereignty | Reasserted | Miller (2017) | Parliament controls Brexit process |
| Judicial Review Limits | Some traditional EU-based judicial review limited | Privacy International (2019) | Balance between UK sovereignty and rights |
| Retained EU Law | Incorporated but amendable | Wightman (2018) | EU law principles maintained temporarily |
| Administrative Principles | Proportionality, fairness continue with caution | Pharmaceutical Society (1989) | EU principles embedded in UK law |
| Constitutional Control | UK courts maintain strong oversight | Miller II (2019) | Judicial limits on executive power |
7. Conclusion
Post-Brexit, EU law continues to influence UK administrative law, mainly through retained EU law and legacy principles. However, the UK is on a path to gradual divergence, reasserting parliamentary sovereignty and judicial independence from the CJEU. The balance between continuity and change defines the evolving relationship, with UK courts adapting EU principles selectively while safeguarding constitutional traditions.
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