Brexit shock: Loss of rights will be a 'natural consequence' of leaving EU
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19.08.2017

Brexit shock: Loss of rights will be a 'natural consequence' of leaving EU

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Analysis drawn up by legal eagles in Whitehall states that a “limited” rollback of rights currently enjoyed by Britons is a “natural consequence” of the decision to leave the bloc.

Under the changes people looking to appeal against a decision made by the UK courts, such as in a discrimination case, will no longer be able to use EU law as a basis for doing so. 

British officials say the change will inevitably occur when Theresa May ends to supremacy of European law and the jurisdiction of the European Court of Justice (ECJ) in the UK. 
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Under Government proposals British courts will have no recourse to “disapply or quash legislation” passed by parliament after Brexit on the basis that it transgresses the general principles of EU law. 

Lawyers say Brexit will also “remove certain causes of action or remedies available to individuals for specific purposes linked inextricably to EU membership”, such as taking their cases to the European courts. 

The revelations are contained in an official legal opinion, drawn up by lawyers at the Department for Exiting the European Union (DExEU) on the potential impact of the Great Repeal Bill. 
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The bill, one of Mrs May’s flagship Brexit measures, will transpose all European law onto the British statute books meaning that MPs can then go through each piece and amend or abolish it as required. 

After the UK has left the club the ultimate responsibility for policing EU laws will no longer fall to ECJ but the British courts, with certain restrictions imposed on how they can be interpreted. 

They cite examples of two German court cases, where EU judges decided that new laws passed by the Bundestag breached age discrimination law, saying the UK would no longer be subject to such rulings. 
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The opinion states: “As a consequence of the UK’s decision to leave the EU and the necessary process of separating EU law from UK law, the Bill will make some changes. 

“These changes relate to certain aspects of EU law which the Government considers are no longer appropriate or which will no longer make sense in the context of the UK’s exit from the EU. 

“It removes certain causes of action or remedies available to individuals for specific purposes linked inextricably to EU membership, such as the ability to challenge the adequacy of transposition of an EU directive.” 
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Government lawyers say that “only general EU principles which have been recognised…before exit will form part of domestic law after exit”, meaning future ECJ interpretations of EU law will not impact on the UK. 

They add: “After exit therefore any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre-exit ECJ case law. 

“We recognise that the approach brought about by the Bill to the general principles, including fundamental rights, may affect the remedies available to our courts. 
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“It would not be open to the courts after exit day to disapply or quash legislation on the grounds that it breaches one or other of the general principles (for example the principle of equal treatment).

“As a consequence, there may be a limited impact on those with protected characteristics seeking to rely on the general principles of EU law on equality and discrimination grounds in cases where the courts are unable to interpret legislation in a way that is consistent with the general principles.” 

The lawyers concluded: “Where potential equalities impacts are identified in this document, these are likely to be limited.
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"They are a natural consequence of the decision to leave the EU, whilst ensuring that Parliament is sovereign following the result of the referendum on EU membership.” 

Ministers insist that withdrawing from the ECJ will not affect people’s rights to recourse under the European Convention on Human Rights (ECHR), which is entirely separate to the EU. 

The potential loss of individual rights was one of the key driver behind Remain backer Gina Miller’s court appeal over Article 50, with her lawyers arguing only an act of parliament could strip people of acquired rights.
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