Investigating the influence of EU law on UK administrative law post-Brexit
✅ Introduction: EU Law and UK Administrative Law
Before Brexit, the European Union (EU) had a direct influence on UK law through:
Direct effect: EU law could be enforced by individuals in national courts.
Supremacy of EU law: EU law took precedence over conflicting UK domestic law.
Interpretative obligation: UK courts had to interpret domestic legislation to be consistent with EU law (Marleasing principle).
Judicial review: Administrative actions were challengeable if inconsistent with EU obligations.
After the UK formally left the EU (31 Jan 2020, transition period until 31 Dec 2020), EU law’s status changed, but its influence remains in several ways.
✅ Legal Framework Post-Brexit
1. European Union (Withdrawal) Act 2018
Retained EU law: Converts existing EU law (as of 31 Dec 2020) into domestic UK law.
Courts must apply this retained EU law unless amended or repealed.
Lower courts cannot depart from retained EU case law unless allowed.
2. UK Sovereignty Restored
UK Parliament is no longer subject to EU supremacy.
UK courts are no longer bound to interpret UK law in line with EU law.
However, existing EU principles still apply to retained law.
✅ Areas Where EU Law Influenced UK Administrative Law
| Area | Influence |
|---|---|
| Judicial Review | Expanded grounds for review (e.g. proportionality) |
| Human Rights & Fundamental Freedoms | Charter of Fundamental Rights (until Brexit) |
| Environmental & Consumer Regulation | EU directives and regulations formed core law |
| Legitimate Expectations | Bolstered by EU case law |
| Proportionality | Gained acceptance, influenced Wednesbury unreasonableness |
Even after Brexit, many of these principles remain embedded in UK law, either through retained law or judicial practice.
✅ Important Case Laws with Detailed Explanation
Here are more than five major cases that illustrate the influence of EU law and how courts are navigating post-Brexit realities:
🔹 Case 1: R (Factortame Ltd) v Secretary of State for Transport (1990)
Facts: Spanish fishermen challenged UK legislation (Merchant Shipping Act 1988) that restricted foreign ownership of British fishing boats.
Issue: Whether domestic UK law violating EU law could be set aside.
Decision: House of Lords disapplied UK law that conflicted with EU law, citing the principle of supremacy of EU law.
Significance: This was a revolutionary case, showing that UK administrative courts could strike down primary legislation contrary to EU law.
Post-Brexit Relevance: After Brexit, this supremacy no longer applies — UK courts are no longer required to disapply domestic law in favor of EU law. However, the case illustrates how EU law shaped administrative power and accountability.
🔹 Case 2: R (Miller) v Secretary of State for Exiting the EU (2017) – Miller I
Facts: The government argued it could trigger Article 50 (withdrawal from EU) using royal prerogative. Claimants argued only Parliament could do so.
Issue: Could the executive (through prerogative powers) change domestic rights derived from EU law without Parliament?
Decision: Supreme Court held that the executive could not trigger Article 50 without Parliamentary authorization, as doing so would affect domestic rights created under EU law.
Significance: Asserted Parliamentary supremacy, and the role of EU law in creating enforceable rights, thereby requiring legislative input to remove them.
Post-Brexit Relevance: Reinforced principle that even EU-related decisions are subject to domestic constitutional controls.
🔹 Case 3: R (Miller) v Prime Minister (2019) – Miller II / Cherry Case
Facts: Prime Minister Boris Johnson advised the Queen to prorogue Parliament during a critical Brexit phase.
Issue: Was this advice justiciable and lawful?
Decision: The Supreme Court ruled the prorogation was unlawful, as it had the effect of frustrating parliamentary sovereignty during a critical time.
Significance: Though not directly about EU law, the context of Brexit amplified scrutiny of executive power. EU law had promoted greater judicial willingness to assess the legality of executive actions, seen in this case.
Post-Brexit Relevance: Confirms the trend of increased judicial review, partly developed under EU influence.
🔹 Case 4: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs (2017)
Facts: Domestic law prevented embassy workers from suing their employers under UK employment law, citing state immunity.
Issue: Whether this restriction was compatible with EU law (Working Time Directive, Charter of Fundamental Rights).
Decision: Supreme Court disapplied provisions of the State Immunity Act as incompatible with EU law.
Significance: Reinforced individual rights under EU law trumping domestic statutes.
Post-Brexit Relevance: Post-Brexit, such rights may no longer override UK law, but retained rights may still offer protection unless repealed.
🔹 Case 5: R (UNISON) v Lord Chancellor (2017)
Facts: The government introduced tribunal fees, which UNISON argued prevented access to justice.
Issue: Whether tribunal fees violated fundamental rights.
Decision: Supreme Court held that the fees regime was unlawful, violating constitutional right of access to justice.
EU Law Relevance: Though based primarily on UK constitutional principles, the court cited EU law standards on access to justice as persuasive.
Post-Brexit Relevance: Demonstrates how EU human rights principles influenced UK administrative law, particularly around proportionality and fairness.
🔹 Case 6: Hemming v Westminster City Council (2015)
Facts: A council charged license fees to businesses under EU Services Directive.
Issue: Whether fees were lawful under EU law.
Decision: UK Supreme Court referred the matter to the CJEU (Court of Justice of the EU) for interpretation, then applied EU law.
Significance: Illustrates how EU law could directly shape local authority discretion and administrative processes.
Post-Brexit Relevance: Post-Brexit, UK courts can no longer refer to CJEU, but similar administrative principles continue via retained law.
🔹 Case 7: R (ClientEarth) v Secretary of State for the Environment (2015–2018 series)
Facts: The UK government was repeatedly challenged for failing to meet EU air quality standards.
Issue: Whether government plans met obligations under EU environmental law.
Decision: Courts ordered the government to revise its plans, affirming the binding nature of EU environmental obligations.
Significance: Demonstrated judicial enforcement of EU environmental standards through judicial review.
Post-Brexit Relevance: The Environment Act 2021 now provides a domestic enforcement framework, but based on EU precedents like ClientEarth.
✅ Key Themes in Post-Brexit UK Administrative Law
1. Retained EU Law Remains Binding — For Now
Courts will continue to apply retained EU law until amended or repealed by Parliament.
2. EU Law’s Legacy Endures
Principles like proportionality, legitimate expectations, fundamental rights, and access to justice have now blended into UK administrative jurisprudence.
3. Judicial Review Becomes More Assertive
Inspired in part by EU law, UK courts now apply more rigorous standards of administrative scrutiny (e.g. proportionality, procedural fairness).
4. No More Supremacy or Direct Effect
EU law no longer overrides UK statutes post-Brexit.
Courts can’t strike down UK laws merely for being contrary to EU law.
5. Evolving Role of the Courts
While courts are no longer required to apply EU principles, many choose to follow their logic for consistency and legal certainty.
✅ Conclusion
Brexit formally removed the UK from the EU legal order, but its influence on UK administrative law persists, especially through:
Retained EU law
Established doctrines (proportionality, fundamental rights)
Judicial willingness to constrain executive overreach
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