Statutory Interpretation and the Role of the Courts after Brexit

Abstract

This article evaluates the impact of the European Union (Withdrawal) Act 2018 (EUWA) on statutory interpretation and on the role of the courts in the United Kingdom. The Act’s new interpretative obligations create a myriad of issues that will occupy litigants and courts in the future. I explain how the complexities of the Act should be disentangled and how courts should exercise their policy choices under the terms of the Act. I show that the assumption that Brexit is a clear break from EU law is in several respects contradicted by the detail of the legislative scheme. The EUWA’s strong theme of legal continuity has the consequence that domestic law will remain considerably intertwined and aligned with EU law after exit day. I also demonstrate that the 2018 Act adjusts the relationship between the courts and Parliament in a way that is not foreseen. EU membership has shaped this relationship and Brexit does not mean that it is profoundly restructured. The Act has the potential to strengthen rather than weaken the institutional and constitutional position of the courts.

The article is structured as follows. After introducing the new body of ‘retained EU law’ created by the EUWA in the next section, the third section unpacks the general purpose of the Act to ensure legal continuity. The fourth section explores to what extent the EUWA achieves legal continuity of statutory interpretation. It will be demonstrated that the Act domesticates EU interpretative rules and principles, i.e. elements of EU legal culture, but falls short of incorporating the CJEU’s teleological approach one-to-one. Section five shows that Parliament’s decision to retain the principle of the supremacy of EU law creates legal continuity for the duty of EU-conforming interpretation in relation to pre-exit domestic legislation. Section six argues that the EUWA domesticates the powerful Marleasing obligation, which will continue to link directly to EU law after exit day. Even though the EUWA does not incorporate the Charter of Fundamental Rights of the European Union, I demonstrate in section seven how the Charter will remain highly significant for the interpretation of retained fundamental rights after exit day. My argument in section eight is that the EUWA (a) has the potential to extend judicial powers to re-interpret and alter the meaning of legislation, (b) has the potential to intensify instead of reverse the shifting of power from the legislature to the judiciary and (c) increases the courts’ institutional position as policy innovators. The final section concludes.

Keywords: European Union (Withdrawal) Act 2018, Brexit, Supreme Court, retained EU law, judicial law-making, statutory interpretation, parliamentary sovereignty