Q&As

What is the legal position where there is an inconsistency between the Withdrawal Agreement and domestic legislation?

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Published on LexisPSL on 11/12/2020

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What is the legal position where there is an inconsistency between the Withdrawal Agreement and domestic legislation?
  • What is the relationship between the Withdrawal Agreement and domestic legislation?
  • Where there is inconsistency, is corrective legislation required? Is inconsistent legislation vulnerable to challenge?

What is the legal position where there is an inconsistency between the Withdrawal Agreement and domestic legislation?

What is the relationship between the Withdrawal Agreement and domestic legislation?

The relationship between the provisions of the Withdrawal Agreement (WA) and domestic legislation is set out in section 7A of the European Union (Withdrawal) Act 2018 (EU(W)A 2018). EU(W)A 2018, s 7A gives effect in domestic law to Article 4 WA which binds the UK as a matter of international law.

The first two paragraphs of Article 4 WA say:

‘1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.’

The requirement in Article 4 WA that the provisions of the WA have the same legal effect in the UK as in the EU and its Member States means, among other things, that:

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