UK Withdrawal from the EU: Supremacy, Indirect Effect and Retained EU Law

27 Pages Posted: 10 Jan 2022

See all articles by Asif Hameed

Asif Hameed

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Date Written: January 10, 2022

Abstract

The UK has left the EU, and in the European Union (Withdrawal) Act 2018 it has legislated to manage withdrawal. The EUWA takes a snapshot of EU law and domesticates it as ‘retained EU law’. The supremacy principle is also domesticated, and benefits retained EU law in its interaction with other domestic law – though only prior (pre-IP completion day) domestic law. The domesticated supremacy principle’s explicit confinement in this backward-facing way is designed to maintain continuity with the previous state of affairs during EU membership, while also allowing for future regulatory divergence. In spite of this, however, we argue that retained EU law has important forward-facing ramifications vis-à-vis future Acts of Parliament. This is through the forward-facing operation of the domesticated doctrine of indirect effect which the EUWA does not confine. The upshot is that the capacity to diverge in future from retained EU law is legally more constrained than might otherwise have been anticipated.

Keywords: EU law, public law, European Union (Withdrawal) Act 2018, retained EU law, indirect effect, supremacy

JEL Classification: K00, K10, K19, K30, K39, K40, K49

Suggested Citation

Hameed, Asif, UK Withdrawal from the EU: Supremacy, Indirect Effect and Retained EU Law (January 10, 2022). Available at SSRN: https://ssrn.com/abstract=4005350 or http://dx.doi.org/10.2139/ssrn.4005350

Asif Hameed (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

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