CILEx L6 EU and Public Law — Questions and Answers
Question 1: Following the UK's withdrawal from the EU, what is the status of retained EU law under the European Union (Withdrawal) Act 2018 as amended by the Retained EU Law (Revocation and Reform) Act 2023?
- All EU law was automatically repealed on 31 December 2020
- Retained EU law was preserved as domestic law but the 2023 Act renamed it 'assimilated law' and removed the supremacy principle, allowing it to be amended or revoked by domestic legislation (Correct answer)
- EU law continues to have direct effect in UK courts
- The UK remains bound by all EU directives until each is individually repealed by Parliament
Correct answer: Retained EU law was preserved as domestic law but the 2023 Act renamed it 'assimilated law' and removed the supremacy principle, allowing it to be amended or revoked by domestic legislation
The EU (Withdrawal) Act 2018 preserved EU law as 'retained EU law' in domestic law. The Retained EU Law (Revocation and Reform) Act 2023 renamed this 'assimilated law', abolished the principle of supremacy of EU law, and ended the special status of retained EU case law, allowing courts to depart from it more freely. Certain specified regulations were revoked by sunset provisions.
Question 2: Under the Human Rights Act 1998, what power does a court have when it finds that primary legislation is incompatible with a Convention right?
- The court must strike down the legislation as invalid
- The court may make a declaration of incompatibility under s.4, which does not affect the validity of the legislation (Correct answer)
- The court must refer the matter to the European Court of Human Rights
- The court must suspend the operation of the legislation pending amendment
Correct answer: The court may make a declaration of incompatibility under s.4, which does not affect the validity of the legislation
Under s.4 HRA 1998, a higher court (High Court and above) may make a declaration of incompatibility where primary legislation is found to be incompatible with a Convention right. Crucially, this does not affect the validity, continuing operation, or enforcement of the provision (s.4(6)). It is then for Parliament to decide whether to amend the law, preserving parliamentary sovereignty.
Question 3: What are the grounds for judicial review of administrative action, as classified by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case)?
- Ultra vires, natural justice, and Wednesbury unreasonableness
- Illegality, irrationality, and procedural impropriety (Correct answer)
- Breach of statute, abuse of power, and failure to consult
- Unlawfulness, disproportionality, and legitimate expectation
Correct answer: Illegality, irrationality, and procedural impropriety
In the GCHQ case [1985], Lord Diplock identified three principal grounds for judicial review: (1) illegality — the decision-maker must correctly understand and apply the law; (2) irrationality (Wednesbury unreasonableness) — the decision is so unreasonable no reasonable authority could have reached it; (3) procedural impropriety — failure to observe procedural rules or the rules of natural justice. Lord Diplock also anticipated proportionality as a potential future ground.
Question 4: In the context of the rule of law, which principle established in Entick v Carrington (1765) remains fundamental to English public law?
- The government may act in the public interest without specific legal authority
- Every interference with individual rights by a public body must be justified by specific legal authority (Correct answer)
- The Crown has inherent power to enter private property for national security purposes
- Executive action is presumed lawful unless challenged within 28 days
Correct answer: Every interference with individual rights by a public body must be justified by specific legal authority
Entick v Carrington established the fundamental principle that executive action interfering with individual rights must be authorised by law. The Secretary of State's general warrant to search Entick's premises was held unlawful because no specific legal authority existed for it. This principle — that public bodies need positive legal authority for their actions — is a cornerstone of the rule of law.
Question 5: What is the constitutional significance of the decision in R (Miller) v Secretary of State for Exiting the European Union [2017]?
- It established that the Prime Minister alone has authority to trigger Article 50
- It held that the royal prerogative could not be used to trigger Article 50 because it would remove rights conferred by Act of Parliament, and only Parliament could authorise such removal (Correct answer)
- It ruled that Brexit was unconstitutional
- It confirmed that prerogative powers are not subject to judicial review
Correct answer: It held that the royal prerogative could not be used to trigger Article 50 because it would remove rights conferred by Act of Parliament, and only Parliament could authorise such removal
The Supreme Court in Miller (2017) held that triggering Article 50 TEU would inevitably result in the removal of rights that had been conferred on individuals through Acts of Parliament (particularly the European Communities Act 1972). Since only Parliament can remove statutory rights, the government could not use prerogative power to trigger Article 50 without parliamentary authorisation.
Question 6: Under the doctrine of proportionality as applied in human rights cases, what must a public authority demonstrate when its action interferes with a qualified Convention right?
- That the action was taken in good faith
- That the interference pursues a legitimate aim, is rationally connected to that aim, goes no further than necessary, and strikes a fair balance between the rights of the individual and the interests of the community (Correct answer)
- That the action was approved by a senior official
- That there was no alternative course of action available
Correct answer: That the interference pursues a legitimate aim, is rationally connected to that aim, goes no further than necessary, and strikes a fair balance between the rights of the individual and the interests of the community
The proportionality test, as formulated in Bank Mellat v HM Treasury (No 2) [2013] by Lord Reed, involves four stages: (1) the objective is sufficiently important to justify limiting a right; (2) the measure is rationally connected to the objective; (3) a less intrusive measure could not have been used (necessity); (4) a fair balance has been struck between the rights of the individual and the community interest.
CILEx L6 EU and Public Law
Following the UK's withdrawal from the EU, what is the status of retained EU law under the European Union (Withdrawal) Act 2018 as amended by the Retained EU Law (Revocation and Reform) Act 2023?