Chapter 9 Outline answers to essay questions

Essay Answer

This question consentrates on the constitutional changes to the relationship between the European Union and the United Kingdom and the status of EU Law.  The answer may be structured in the following stages.

The Legal Basis of the current relationship between the European Union and the United Kingdom.

This will require discussion of the scope and provisions of the UK – EU Trade and Cooperation Agreement as implemented by the European Union (Future Relationship) Act 2020.

The Wider Legal Consequences of Leaving the European Union.

Your answer should discuss the following:

  1. The distinction between retained and ocnverted European Union Law

    ss 2–4 of the European Union (Withdrawal) Act created two categories of retained EU law
  • preserved legislation;
  • converted legislation.
  1. The interpretation of EU law

The relevant law is Section 6(3) European Union (Withdrawal) Act 2018

  1. The supremacy of EU law

The relevant law ia Section 5; 6(2) (3); 7 European Union (Withdrawal) Act 2018

  1. The Francovich Principle

The relevant law isSchedule 1 para 4 European Union (Withdrawal) Act 2018

  1. The present role of the CJEU.

Section 6 European Union (Withdrawal) Act 2018

  1. The present legal status of the general principles

The relevant law is Schedule 1 European Union (Withdrawal) Act 2018

 

Human Rights in the Trade and Cooperation Agreement

The continued protection of civil and political rights is dealt with by Article COMPROV.4 of the Trade and Cooperation Agreement which covers Democracy, rule of law and human rights. 

Article 6 and Article 8 of the level playing field provisions.  Article 6(1) applies to the following areas of current employment law including:

  • fundamental rights at work
  • occupational health and safety standards
  • fair working conditions and employment standards
  • information and consultation rights at company level;
  • restructuring of undertakings.

Article 6.2 contains a non-regression rule in the following terms:

  • A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.

To enforce this non-regression rule, there is a special rule on dispute settlement (Article 6.4): in place of the general dispute settlement rules, Articles 9.1 to 9.3 of the level playing field provisions apply.

The second set of relevant rules is found in Article 8 of the level playing field provisions, on ‘Other instruments for trade and sustainable development’.  The key provision on labour standards in this chapter (Article 8.3) refers expressly to social rights