This page focuses on discrimination occurring from the start of 2021 to the end of 2023. Largely, British courts continued to apply EU law, so far as not amended by Parliament or the government. Parliament’s aim was to preserve legal certainty.
For discrimination occurring from the start of 2024 onwards, see Brexit: Effect of EU law when interpreting Equality Act, from 2024.
Summary (2021 to 2023)
- After the end of 2020, the UK Parliament is no longer constrained by EU law in making changes to the Equality Act (EqA).
- However except so far as Parliament amended the EqA after 2020, in the interests of legal certainty it seems that the UK courts after 2020 generally still had to follow the Framework Employment Directive, and follow pre-2021 decisions of the EU Court of Justice unless the Supreme Court or Court of Appeal decided otherwise. Below Supremacy of EU law and How far must British courts follow pre-2021 EU case law?
- The Marleasing principle (below) therefore seems to have continued, for discrimination which happened before the end of 2023. The effect of this was that (subject to certain limits) the UK courts were allowed – indeed required – to depart from the wording of British statutes, including the EqA, to make them conform with EU law.
- British courts were not bound by an EU Court decision made after the end of 2020, but “may have regard to it”. Below EU Court decisions made after 2020.
- The aim was to maximise certainty, so people knew what the law was.
- This page is my interpretation of the position. It should be treated with particular caution as to a large extent we do not yet have court decisions on the issues it discusses.
There is a technical note below on the meaning of “exit day” (31st January 2020) and “IP completion day” (11pm on 31st December 2020).
Supremacy of EU law until UK modifies its laws (before end of 2023)
UK legislation said that the principle of supremacy of EU law continued to apply after the end of 2020 as regards enactments passed or made before the end of 2020 (s.5(2) EU (Withdrawal Act) 2018). This supremacy principle did not apply to any modification of an enactment after the end of 2020, unless applying the supremacy principle was consistent with the intention of the modification (s.5(3)). So the principle did not prevent the UK Parliament passing or amending laws after 2020.
It seems that s.5(2) EU (Withdrawal Act) 2018 – under which the principle of supremacy of EU law continued for pre-2021 enactments – and/or other provisions of the 2018 Act included the principle that UK courts should interpret UK legislation to conform with EU directives so far as possible. This is called the Marleasing principle (below). Therefore, after the end of 2020, UK courts were apparently required to continue to interpret the Equality Act on the basis that it must comply with the Framework Employment Directive where possible, except so far as the Equality Act was amended after 2020 and the EU interpretation was inconsistent with the intention of the amendment. Any amendment will normally be by the UK Parliament.
The position was similar for ‘retained general principles of EU law’ (below).
Largely the supremacy of EU law ended on 31st December, 2023, and so does not apply to discrimination which happened after that date.
How far must British courts follow pre-2021 EU case law?
Broadly lower courts are bound by pre-2021 – ie pre-Brexit – EU case law. However the extent to which higher courts (the Supreme Court and Court of Appeal) can depart from pre-2021 EU court decisions does not seem to depend not on when the discrimination happened (this page is about discrimination which happened up to the end of 2023). Rather it seems to depend on procedural dates as set out in regulations, for example when permission to appeal to the higher court was given. I discuss the rules at Brexit: Effect of EU law when interpreting Equality Act, from 2024>Higher courts can sometimes depart from pre-2021 EU case law.
EU Court decisions made after 2020
The position here from the start of 2021 to the end of 2023 is the same as after 2023. In summary, British courts were not bound by EU Court decisions made after 2020, but British legislation said that courts “may have regard” to them. More: Brexit: Effect of EU law when interpreting Equality Act, from 2024>EU Court decisions made after 2020.
Marleasing principle: interpreting the Equality Act to conform with the directive (before 2023)
EU and UK court decisions before Brexit laid down the principle that UK legislation implementing EU directives must be interpreted where possible to conform with EU law. This is called the Marleasing principle: see EU Framework Employment Directive>Marleasing principle: interpreting Equality Act to comply with Directive. The principle is also known as the duty of consistent interpretation (or conforming interpretation), or as indirect effect.
Very often this principle allowed the UK court to go against the wording of the UK legislation: below Departing from the wording of the Equality Act.
It seems that the Marleasing principle continued to apply after the end of 2020 on one or more of several grounds: below Technical note: Why Marleasing principle continues. The principle probably does not apply to discrimination which occurred after the end of 2023, although (where caselaw has not been expressly preserved by regulations) it remains to be seen whether other arguments can preserve the effect of past cases based on the Marleasing principle: see Brexit: Effect of EU law when interpreting Equality Act, from 2024>Marleasing principle.
British Airways v Rollett & others, Employment Appeal Tribunal, [2024] EAT 131
The case concerned tribunal claims under the EqA made in about January 2021. The EAT said that following the UK’s departure from the EU, the application of EU law in Britain was initially governed by the EU (Withdrawal Act) 2018, which preserved aspects of EU law in domestic law. It was common ground between the parties in this case that, pursuant to the provisions of the 2018 Act. the Marleasing principle remained part of domestic law, to be applied by the employment tribunal in this case.
Therefore, it seems that for discrimination which happened before the end of 2023, UK courts should continue to interpret the Equality Act in accordance with the Framework Employment Directive – including in accordance with EU Court decisions made before the end of 2020 unless the Supreme Court or Court of Appeal decide to depart from them (and subject to the point on EU general principles in the next paragraph). Employment Appeal Tribunal decisions interpreting the Equality Act to comply with the Directive and with EU Court decisions also remain binding on employment tribunals unless overruled by higher courts. (Brexit: Effect of EU law when interpreting Equality Act, from 2024>Higher courts can sometimes depart from pre-2021 EU case law.)
A possible exception is where it is a general principle of EU law that one is seeking to use to modify/disapply UK legislation. See Exceptions for EU general principles (below), and Ministry of Defence v Rubery (EAT), 2024, including Ministry of Defence v Rubery>Comment: EU law and Marleasing principle (before 2024). As to the Marleasing principle more generally, in the Rubery decision it was not disputed that in 2021 theprinciple continued to apply to the interpretation of pre-2021 UK legislation, and was an aspect of the principle of EU supremacy.
UK courts are not bound by EU Court decisions on the Framework Employment Directive made after the end of 2020, but may have regard to them if they consider appropriate: see above EU Court decisions made after 2020.
(The position would have been different if – which didn’t happen for pre-2024 discrimination – the UK Parliament had amended the Equality Act after 2020, unless applying the EU interpretation was consistent with the intention of the modification: s.5(3) and s.6(3)(6) EU (Withdrawal) Act 2018 and Technical note below.)
Departing from the wording of the Equality Act (before 2023)
Since the Marleasing principle continued, it seems that after 2020 (for eg discrimination occurring before the end of 2023), British courts were still allowed – indeed required – to depart from the express wording of an EU-derived British statute such as the Equality Act subject to the same limitations as before, in order to comply with the Framework Employment Directive and/or an EU Court decision issued before the end of 2020 (subject to the right of British higher courts to depart from the EU court decision) – unless the British statute had been amended after 2020 and the EU interpretation was inconsistent with the intention of the amendment. This is part of what is required and allowed by the Marleasing principle (above).
Applying the Marleasing principle in this way was in line with the UK government’s Equality Analysis: EU (Withdrawal) Bill (pdf) on the 2018 Act. The Analysis said at para 28 that “the Bill preserves the requirement on our courts and tribunals to interpret domestic legislation, so far as possible, in light of relevant directives (this is often referred to as the duty of consistent interpretation).” Para 35 of the Analysis gave as an example of this principle the case of Coleman where the UK courts went against the wording of the Disability Discrimination Act (DDA) to make it consistent with EU law.
Could Supreme Court and Court of Appeal depart from Marleasing principle?
Arguably, for discrimination occurring up to the end of 2023, the Supreme Court and Court of Appeal were bound by the Marleasing principle as regards pre-2021 legislation (unless amended), since it seems likely the principle was continued under s.4 EU (Withdrawal Act) 2018 and/or was part of the supremacy of EU law (above) continued under s.5(2) EU (Withdrawal Act) 2018 (see possible grounds for the principle below). Ss.4 and 5 did not say the Supreme Court etc can override their provisions. A possible counter-argument is that the Marleasing principle was a creation of EU Court decisions which the Supreme Court or Court of Appeal can depart from subject to the normal test, discussed at Brexit: Effect of EU law when interpreting Equality Act, from 2024>Higher courts can sometimes depart from pre-2021 EU case law. I imagine that in practice, probably at most these higher courts might adjust the limitations of the principle, as to when it is permissible to depart from express wording of UK legislation.
Even if the Supreme Court and Court of Appeal were bound by the Marleasing principle, after 2020 they may decide to interpret EU directives differently from the EU Court, including the Framework Employment Directive. So even if the Supreme Court and Court of Appeal had to interpret UK legislation so as to comply with EU law (including directives) so far as possible, they might interpret that EU law differently from the EU Court.
Direct effect
Some provisions of directives, including the Framework Employment Directive, have direct effect if a member state has not properly implemented the directive. If the directive rights are sufficiently clear, precise and unconditional, an individual can rely on them against public bodies such as public sector employers. Direct effect was not normally important as regards disability discrimination; the UK courts commonly gave a wide interpretation to the Equality Act under the Marleasing principle (above), so that direct effect was not needed.
‘Direct effect’ rights under EU directives were brought into UK law at the end of 2020 by s.4 EU (Withdrawal) Act 2018, but subject to a proviso. The scope of the proviso is unclear. Direct effect of a right continued under s.4 at least if a previous EU or UK court decision before the end of 2020 recognised the right, but also in some other circumstances. How far this went has yet to be clarified by the courts – including whether any directive right that was sufficiently clear, precise and unconditional continued to have direct effect. This is discussed further below in Technical note: Direct effect.
Direct effect does not apply to discrimination which occurred after the end of 2023: Brexit: Effect of EU law when interpreting Equality Act, from 2024>Direct effect – no longer applicable as such.
Francovich damages
Before the end of 2020, where a directive had not been properly implemented in the UK but a person could not rely on direct effect (eg if it was a private-sector employer), the person might be able to claim ‘Francovich damages’ against the UK government. However after the end of 2020 such claims are excluded by Schedule 1 para 4 of the EU (Withdrawal) Act 2018.
Kücükdeveci principle
On the possibility of relying on the Directive against private sector employers, if exceptionally the EqA cannot be re-interpreted under the Marleasing principle (above), see below Kücükdeveci principle.
General principles and EU Charter
Relevance to Equality Act on disability?
The main way in which British courts achieved compliance of the EqA with EU law was by re-interpreting the EqA where necessary under the Marleasing principle, above. The provisions discussed below (on EU general principles and the EU Charter) do not seem to affect the ongoing applicability of this Marleasing principle up to the end of 2023. In particular, as regards Sch 1 para 3 EU (Withdrawal) Act 2018 below, the Marleasing principle involved reinterpreting rather than disapplying or quashing legislation.
The provisions below were more likely to be relevant (for discrimination before the end of 2023) if – very exceptionally – the EqA or regulations under it could not be re-interpreted, and the claim was not against a public body such that direct effect (above) of the Directive could apply. The question would then arise whether – based on the Kücükdeveci principle (below), relying on the EU general principle of non-discrimination also discussed below – the British court could disapply the British legislation even in a claim against a private sector employer, looking at the exceptions in Sch 8 para 39.
General principles of EU law
Note: general principles of EU law have now been repealed in Britain for claims arising after the end of 2023: s.4 REUL Act 2023 with s.22(5).
For discrimination occurring before the end of 2023, in principle general principles of EU law seemed to remain as part of domestic law after Brexit, and certainly remained relevant to interpreting EU-based legislation such as EqA employment provisions. However there were important exceptions. What follows is subject to those exceptions (below).
“Retained general principles of EU law” – ie the principles as they stood immediately before the end of 2020 – needed to be followed by UK courts after 2020 when determining the meaning, effect or validity of any retained EU law (such as the EqA employment provisions), so far as the UK law had not been modified after that end of 2020 (s.6(3)(7) EU (Withdrawal) Act 2018). Presumably the normal s.6 rules (above) applied as regards case law on these general principles of EU law.
It also seems likely that apart from s.6, and subject to relevant exceptions, general principles of EU law continued after Brexit under s.4 EU (Withdrawal) Act 2018. (There are differing views in cases, but see below Beattie case, and General principles as retained EU law and accrued EU law (eurelationslaw.com), November 2022.)
Examples of EU general principles given in para 59 of the Explanatory Notes to the 2018 Act or in the Equality Analysis: EU (Withdrawal) Bill (pdf) at para 21 include:
- proportionality,
- fundamental rights,
- non-retroactivity,
- equality before the law, non-discrimination and equality between men and women.
Exceptions for EU general principles
No general principle of EU law was part of UK law after the end of 2020 if it was not recognised as a general principle of EU law by the EU Court of Justice in a case decided before the end of that year, whether or not as an essential part of the decision (Sch 1 para 2 EU (Withdrawal) Act 2018).
Also, under Sch 1 para 3 EU (Withdrawal) Act 2018, but subject to Sch 8 para 39 below:
- there was no right of action in domestic (ie British) law after the end of 2020 based on a failure to comply with any of the general principles of EU law (para 3(1)), and
- after 2020 a UK court could not disapply or quash any enactment or other rule of law because it was incompatible with any of the general principles of EU law (para 3(2)).
Sch 1 para 3 did not seem to affect the continued application, in principle, of the important Marleasing principle: see above Relevance to Equality Act on disability? However Sch 1 para 3 may arguably limit the scope of the Marleasing principle where it is a general principle of EU law that one is seeking to use to modify UK legislation. The argument may be whether the modification is only an “interpretation”, or whether it would “disapply” or “quash” an enactment or rule. This issue arose in Ministry of Defence v Rubery, EAT, 2024.
There were exceptions from Sch 1 para 3 in Sch 8 para 39. One of particular interest is Sch 8 para 39(5), which said Sch 1 para 3 (above) does not apply to proceedings begun before the end of 2023 challenging anything which occurred before the end of 2020, if (oversimplifying) the challenge is not to disapply or quash (a) an Act of Parliament or (b) regulations which, as a result of an Act of Parliament, could not have been different or which give effect to, or enforce, an Act of Parliament.
Also, a blog suggested it was very hard to see how the exception in Sch 8 para 39(6) did not significantly reduce or un-do the impact of the “rule” in Sch 1 para 3(2) above, on disapplying or quashing: Retained EU law: a guide for the perplexed (eurelationslaw.com), December 2020.
A case where the exception in para 39(5) was held not to apply:
Secretary of State for Work & Pensions v Beattie (bailii.org), Employment Appeal Tribunal (EAT), 2022
The claimants argued that the Equality Act (Age Exceptions for Pension Schemes) Order 2010 should be disapplied as being incompatible with the EU principle of non-discrimination encapsulated in the Framework Employment Directive. This principle was stated in Article 21 of the EU Charter of Fundamental Rights.The EAT held that only those claimants who submitted their claims before the end of 2020 could make this claim, as they fell within the exception in Sch 8 para 39(3) of the EU (Withdrawal) Act 2018. In principle, general principles of EU law survived past the end of 2020 under s.4 Withdrawal Act, but people who started their claims after the end of 2020 were barred from claiming by s.5(4) (below) as regards the Charter, and by Sch 1 para 3(2) above so far as the non-discrimination principle existed irrespective of the Charter. Given the nature of these regulations, the exception in Sch 8 para 39(5) – which may allow a claim started before the end of 2023 – did not apply (para 140 of EAT decision, with para 21-22).
Note: Direct effect did not apply in this case as the pensions trustees were held not to be an emanation of the state. It seems that the relevant provision of the regulations could not be re-interpreted under the Marleasing principle. The claimants were therefore left with (unsuccessfully) trying to disapply the regulations under the Kücükdeveci principle, based on a general principle of EU law.
Discussion of general principles of EU law after Brexit (up to the end of 2023) in the light of post-Brexit British court decisions:
- General principles as retained EU law and accrued EU law (eurelationslaw.com), November 2022
- Are General Principles of EU Law Part of Domestic Law – Lipton and Adferiad, which is correct? (eurelationslaw.com), December 2021.
Kücükdeveci principle
‘Direct effect’ (above) of an EU directive only applied against public sector bodies, so not against private-sector employers. Even so, if an EU-compliant interpretation of the EqA under Marleasing (above) was not possible, before the end of 2020 it might be possible to claim under EU law against a private-sector employer using the principle in Kücükdeveci: see Framework Employment Directive>Beyond direct effect. This claim would be based on the general principle of non-discrimination in EU law. As well as the Kücükdeveci case itself, Benkharbouche, below is an example of such a claim.
The UK government considered that such a claim was not possible after the end of 2020 under s.6 EU (Withdrawal) Act 2018, presumably on the ground that it was blocked by Schedule 1 para 3 (para 22 of Equality Analysis: EU (Withdrawal) Bill (pdf)). However that should be subject to the exceptions in Sch 8 para 39: see above Exceptions. Also see EU Charter, below on arguing that the general principle of non-discrimination exists independently of the Charter (up to the end of 2023).
In any event, no claim under Kücükdeveci should be possible for discrimination which occurred after the end of 2023, because of the abolition in Britain of general principles of EU law, including the general principle of non-discrimination: s.4 REUL Act 2023 with s.22(5).
EU Charter of Fundamental Rights
The EU Charter was not taken into UK law after the end of 2020 (s.5(4)(5) EU (Withdrawal) Act 2018), subject to limited exceptions in Sch 8 para 39.
Under s.5(5), this non-application of the Charter did not affect the retention in UK law of any fundamental rights or principles which existed irrespective of the Charter. In Beattie (above), at para 136-137, the claimants argued that because of this subsection (5), the EU general principle of non-discrimination/equal treatment remained after the end of 2020 despite being in Article 21 of the Charter, because under the Mangold case (as regards age) this principle existed before and irrespective of the Charter. The court did not have to decide this though because, on the facts, even as a general principle of EU law it would be excluded by Sch 1 para 3(2) above.
The Equality and Human Rights Commission expressed concern that the EU Charter no longer applying would lead to a reduction in rights (archive of equalityhumanrights.com), and published a legal opinion (pdf) by leading counsel supporting this view.
For example in the Benkharbouche case (ukscblog.com), 2017, the State Immunity Act 1978 was held to breach the right to a fair trial in both the EU Charter of Fundamental Rights and the European Convention on Human rights in so far as it blocked employment claims by domestic staff of an embassy. The UK Supreme Court was able to disapply the 1978 Act as regards the discrimination claims and the claims under the working time regulation, because these derived from EU law and the EU Charter overrode UK law. Therefore the workers could enforce these rights in the UK courts. However the claims based on non-EU rights such as unfair dismissal could not be heard by the UK courts; under the Human Rights Act the Supreme Court could only declare the 1978 Act to be incompatible with the European Convention on Human Rights. The non-EU claims could not be heard unless and until Parliament amended the 1978 Act. It seems that after the end of 2020 even the EU-derived claims (including discrimination) would not have succeeded, unless and until Parliament amended the State Immunity Act 1978. (More on Benkharbouche: Enforcement of European Convention and HRA 1998.)
Aim was to maximise certainty
The purpose of applying pre-Brexit case law was to maximise certainty. Everyone will have been operating on the basis that the law means what the EU Court of Justice has already determined it means. Any other starting point would be to change the law (Repeal Bill: White Paper (gov.uk), 2017). Unless previous case law is applied, no one would know post-Brexit what the law is, how they should or shouldn’t act – until new cases had made their way up through the courts.
The REUL Act 2023 is now creating more uncertainty.
Technical note: Why the Equality Act employment provisions are “retained EU law”
See now:
“Retained EU law” was renamed “assimilated law” by the REUL Act 2023.
Technical note: Why Marleasing principle continued to end of 2023
This is the principle laid down by EU and UK court decisions that UK legislation implementing EU directives must be interpreted where possible to conform with EU law. Very often this principle allowed the UK court to go against the wording of the UK legislation. See above Marleasing principle: interpreting the Equality Act to conform with the directive.
This technical note is about the legal grounds for saying the Marleasing principle continued to apply after the end of 2020, until the end of 2023. It seems the principle continued to apply on one or more of the following grounds:
- The Marleasing principle was an “obligation” (on domestic courts) or a “remedy” within s.2(1) European Communities Act 1972 which after 2020 was preserved by s.4 EU (Withdrawal) Act 2018 (Bennion, Bailey and Norbury on Statutory Interpretation 8th ed, 2020, p.910).
- Also relying on s.4, the Marleasing principle was perhaps part of the principle of supremacy of EU law (above) (Bennion above p.910, Duhs & Rao Retained EU Law: A Practical Guide, 2021, 4.1, 11.4 and 14.3.2). The principle of supremacy of EU law was preserved by s.4 EU (Withdrawal) Act subject to the exception in s.5(1) (Bennion above p.905 which says the main effect of s.5 is to limit what is preserved by s.4). S.5(2) EU (Withdrawal) Act made clear that the principle of supremacy of EU law still continued after 2020 in respect of legislation passed before the end of that year.
- Under s.6(3) EU (Withdrawal) Act the meaning and effect of any retained EU law – such as the Equality Act employment provisions (Technical note above) – was normally to be decided in accordance with pre-2021 EU or UK court decisions, albeit this is being somewhat relaxed for later court decisions: Brexit: Effect of EU law when interpreting Equality Act, from 2024>Higher courts can sometimes depart from pre-2021 EU case law. This could apply to the Marleasing principle itself as set out in pre-2021 court decisions, and also to court decisions on how the principle applies to particular provisions of the Equality Act, for example. (Duhs & Rao above, at 11.4, said s.6(3) was one of the provisions ensuring the Marleasing principle continues. Also Bennion above p.910-12, footnote 9, said s.6(3) might be suggested as a basis for the Marleasing principle continuing.)
- Duhs & Rao above, at 11.4 and (at p.89) 11.5, saw s.2(1) EU (Withdrawal) Act 2018 as one of the provisions pointing to the continued relevance of the Marleasing principle. S.2(1) provides that EU-derived domestic legislation continues to have effect “as it has effect in domestic law immediately before [the end of 2020]”. To illustrate the relevance of this phrase, p.89 gave the example of the 2017 case in which the Supreme Court used the Marleasing principle to re-interpret s.42(1) Equality Act in respect of police misconduct panels. The book commented at pp.89-90 that the effect of the quoted phase was that s.42(1) continues to have effect taking into account the Supreme Court interpretation. It added that the phrase also reinforces s.6(3) above.
Also Bennion above, p.909, said this phrase in s.2(1) “as it has effect in domestic law immediately before [the end of 2020]” seemed intended to buttress the effect of s.6(3). Bennion said it appeared to be “intended to preserve any impact that EU law may have had before [the end of 2020] on the effect or interpretation of the domestic legislation (eg where EU law caused the domestic legislation to be disapplied, or to be interpreted in a particular way).” Bennion was evidently referring to the Marleasing principle here.
From the end of 2020 to the end of 2023 there seem to have been no amendments to the Equality Act relevant to the Marleasing principle. But if there had been: The Marleasing principle did not apply so far as the UK Parliament amended the Equality Act after 2020, unless applying the EU interpretation was consistent with the intention of the modification: s.5(3) and s.6(3)(6) EU (Withdrawal) Act 2018. Even if the UK court applied the Marleasing principle solely on the basis of s.4 EU (Withdrawal) Act under the first option above, I think the same should apply on the basis of later legislation taking precedence over earlier, coupled with s.5(3) limiting supremacy of any rights continued by s.4.
Technical note: Direct effect (until end of 2023)
This note expands on Direct effect above, giving more detail on how far EU directives continued to have direct effect under s.4 EU (Withdrawal) Act 2018, until the end of 2023.
Some provisions of directives, including the Framework Employment Directive, have direct effect if a member state has not properly implemented the directive. If the directive rights are sufficiently clear, precise and unconditional, an individual can rely on them against public bodies such as public sector employers. Direct effect has not normally been important as regards disability discrimination; the UK courts commonly gave a wide interpretation to the Equality Act under the Marleasing principle (above), so that direct effect was not needed.
‘Direct effect’ rights under EU directives were brought into UK law at the end of 2020 by s.4 EU (Withdrawal) Act 2018. However this only applied if the right was either:
- “of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before [the end of 2020] (whether or not as an essential part of the decision in the case)”: s.4(2)(b) EU (Withdrawal) Act 2018, or
- “of a kind recognised by a court or tribunal in the United Kingdom in a case decided on or after [the end of 2020] but begun before [the end of 2020] (whether or not as an essential part of the decision in the case)”: para 38 of Schedule 8, EU (Withdrawal) Act 2018.
So a decision of the EU Court recognising a right of the relevant kind had to be before the end of 2020, but a decision of a UK court or tribunal recognising such a right could be after that time provided the case was begun before the end of 2020.
However it was not at all clear what “of a kind” means. It might mean:
- for a right to continue to have direct effect under s.4, it is sufficient that the right satisfies the general criteria for having direct effect, basically that the provision is sufficiently clear, precise and unconditional – such criteria being as determined by court decisions made before the end of 2020 (or by UK court decisions in proceedings begun before that time); or
- the previous court decision must have been on the specific right/provision of the particular directive, holding it to have direct effect; or
- some intermediate position: that a directive provision which a court before the end of 2020 held to have direct effect was in some other way (yet to be clarified) of the same “kind” as the provision argued to have continuing effect under s.4, perhaps as in the Harris case below.
There is some discussion of this below. However what “of a kind” means in this context is currently unclear, and likely to remain unclear until we have a Supreme Court decision.
The Explanatory Notes to the 2018 Act seem to say that the previous court decision must have held that the particular directive provision has direct effect, ie option 2 above:
98. The reference in subsection (2)(b) to rights ‘of a kind’ is intended to ensure that rights are retained if they are of a similar kind to those so recognised. So rights arising under a particular directive that have been recognised by a court before exit day as having direct effect, could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address. Rights arising from any directly effective provisions of directives that have not been recognised prior to exit day (to the extent these might exist) will not be converted by this section (subject to the transitional etc provision in Schedule 8, Paragraph 38).
Paragraph 98 of the Explanatory Notes to the 2018 Act.
But as the House of Lords Constitutional Committee pointed out, it might be argued this is not actually what the statutory wording says:
“34. Clause 4 also provides that directives will not be brought into domestic law if they are “not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”. It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect [option 2 above], or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered [option 1 above]. The language of clause 4 [ie the statutory wording] supports the latter interpretation, but the explanatory notes appear to endorse the former.”
HL Constitution Committee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk)
There was some later commentary on this question in When do directives form part of Retained EU Law? Case comment (eurelationslaw.com), September 2022, discussing the 2022 High Court decision in Harris below. This blog argued the better interpretation of s.4(2)(b) to be the broader one, ie option 1 above.
The Harris decision seems to me to raise the possibility of some intermediate position, option 3 above. Harris suggests too that it does not matter if the previous court decision was wrong, at least if it has not been overturned on appeal, or later overruled. (However this latter point is unlikely to be relevant if option 1 applies, ie if no decision on the particular right or a related right is needed.)
Harris v Environment Agency (bailii.org) High Court, 2022
The court held at para 89-94 that article 6(2) of the Habitats Directive continues to have direct effect under s.4 EU (Withdrawal) Act 2018, notwithstanding s.4(2)(b).Firstly, the EU Court had (before the end of 2020) held that article 6(3) of the Habitats Directive has direct effect, in a case called Waddenzee. That was not a decision on article 6(2), but the High Court said s.4(2)(b) does not require that the particular provision in issue has been held to have direct effect. S.4(2)(b) only requires that it is “of a kind” that has been held to have direct effect. The High Court continued: “There is a close relationship between article 6(2) and 6(3). They both require the national authorities to take steps to achieve the aims of the Habitats Directive and, in particular, to avoid deterioration of habitats and significant disturbance of species in the special areas of conservation. Article 6(3) applies prospectively. Article 6(2) enables a retrospective check that the article 6(3) steps remain adequate. Article 6(2) is thus “of a kind” that was recognised in Waddenzee as having direct effect.”
In any event, the High Court (at para 93) that it was sufficient that in 2019 an Upper Tribunal had held that the duties on member states under article 6(2) are binding on all public authorities of a member state, including the courts. S.4(2)(b) expressly stated that it is not necessary for this to be an essential part of the court’s decision. Also, said the High Court, it is not relevant under s.4(2) to enquire as to whether the previous case was correctly decided – though the position might be different if the decision was overturned on appeal, or later overruled.
Duhs & Rao Retained EU Law: A Practical Guide, 2021, at 13.6, suggested different possible interpretations of s.4(2), apart from the government’s, and said it remains to be seen how domestic courts will interpret “of a kind”. It illustrated one suggested possibility with the example that a right not to be discriminated against on the ground of sex might be said to be “of a kind” with a right not to be discriminated against on the ground of age.
Technical note on ‘IP completion day’ and ‘exit day”
Under the EU (Withdrawal Act) 2018:
- “IP completion day” is 11pm on 31st December 2020 (s.39(1)-(5) EU (Withdrawal Agreement) Act 2020, applied to the 2018 Act by s.1A(6)).
- “exit day” was 11pm on 31st January 2020, when the UK ceased to be a member of the EU. “Exit day is defined by s.20(1) EU (Withdrawal) Act 2018, most recently amended by SI 2019/1423 after several agreed extensions of membership.
For more see Brexit: UK-EU agreements, and UK legislation.
Links
As well as the links above:
- HL Constitution Cttee report: EU (Withdrawal) Bill, January 2018 (pdf, parliament.uk)
- Disability rights Risks of Brexit (tuc.org.uk)
- “Impact of Brexit on the Equality Agenda”, evidence to House of Commons Women and Equalities Committee (parliament.uk), 14th Sept 2016.
