Jurisdiction(s):
United Kingdom

Withdrawal Agreement Bill: implementing Article 4 via clause 5, supremacy and direct effect, CJEU jurisdiction, and the effect of clause 36 on UK parliamentary sovereignty

Published on: 23 October 2019

Published by a LexisNexis Public Law expert

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Article summary

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union (Withdrawal Agreement) Bill (WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom.

Current status of EU law

At present, section 2(1) of the European Communities Act 1972 (ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and followed accordingly; the term “enforceable EU right” and related phrases are to be interpreted as referring to matters within that subsection.

ECA 1972, section 2(4) goes further, declaring that any enactment passed, or to be passed, Read alongside section 2(1), this articulates how Treaty-based rights and procedures take effect domestically and informs present debates about sovereignty today...

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