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08th January 2020

The UK in the departure lounge.

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Dominic Hopkins, Head of Disputes & Litigation, assesses where we are now in our conscious uncoupling from the EU. The success of the Conservative Party at the December 2019 election under Boris Johnson’s leadership means we are heading towards the departure gate of the European Union at the end of January. From 31 January 2020, the UK with all its constituent parts will cease to be a member of the fraternity of States we joined forty-six years ago this month. So, will we be waving our boarding pass, walking through the gate, embarking our plane and flying away into 2020 at the end of the month; bidding farewell to the legal landscape we have come to know so well? Not really. Not yet anyway.

The deal reached by Mr Johnson with the EU first needs ratifying. That is in process, but we can confidently expect this to occur given that European political consents are in the bag and Mr Johnson has his majority in the House of Commons to get the requisite legislation through Parliament. That legislation will become the European Union (Withdrawal Agreement) Act 2020.

Assuming it passes into law as the Government intends, the 2020 Act will not place the UK beyond the reach of EU law however. Although the Act will bring into effect the EU (Withdrawal) Act of 2018, repealing the European Communities Act 1972
(by which the UK acceded to the scheme of European Law), the agreement is that there will be a time-limited implementation period that will last through to 31 December 2020 (unless terminated early or extended), buying the EU and the UK time to try and chart a future relationship of one sort or another. As to that, the political declaration agreed as part of the deal has plenty of generality to it and is not legally binding, so there are very few certainties and considerable complexity to be worked through.

Meanwhile, with echoes of Tom Hanks in the film ‘The Terminal’, the UK will remain in the legal departure lounge with an ambiguous status for a while yet. We will have left, but we won’t have. EU rules and regulations will continue to apply in the UK after the scheduled departure date and although the direct jurisdiction of the European Court of Justice (CJEU) will come to an end in the UK at the end of January, the existing EU mechanisms for supervision and enforcement will continue to apply. By that token, the UK will continue to have recourse to the judicial review structures of the EU as a Member State and the supremacy of CJEU rulings will be preserved through the implementation period.

Although in this way the implementation period will preserve the key ingredients of the legal scheme with which we have become familiar for some months yet, it is bound to produce some tricky legal points to grapple with. It will not be an especially comfortable place to be. Saying that, the job of uncoupling the UK from the EU is a highly technical exercise – unprecedented in its legal complexity – so the time we have in the departure lounge is going to be valuable. Essential.

The end of January is the end of the beginning of the story. Who is to say how the story will end?

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.