 In which case, let me start. Welcome everyone, my name is Catherine Barnard and I'm the director of cells that gives me huge pleasure to introduce to you today. My dear friend, wonderful colleague, Julian gosh, Julian gosh or wears a number of hats. I mean he is a man of many parts. For some of you, you will know him as your supervisor, but others you will know him as a brilliant tax silk, and for others you will know him as a deputy judge. But for many of you, you probably don't know that he's also fenced the Scotland and that nimble footedness required in fencing well I hope allow him to take us through the complexities of his subject today. Julian, thank you so much for your time. The way we're going to play it is to, you're going to talk for half an hour or so. And then you can agree to take questions. If anyone has questions, please could you put them in the Q&A box, not the chat box. Julian the floor is yours and thank you. No, thank you. It's always a privilege to speak at cells. So the thanks are always from my direction to yours. Let's go. My talk, which is annoying. That's better. So, let me pick up my thread which I had dropped. That's right. Let's talk about retained EU law. Number of preliminary points about retained EU law. We're going to come shortly to what, what that is. That's the key of EU law that played that applied in the UK when the UK was a member state, and that will continue to apply after 1 January this year. But preliminary point number one, which is very, very, very important. We find retained EU law, the definition of what it is, and if particular provisions are they count as retained EU law. What the consequences are so what well so quite a lot and as we'll see. The key point is when you look at the statute, the EU withdrawal act 2018 that tells you what retained EU law is. The first point is the project, the objective of having this body of retained EU law is to freeze EU law as that pretty much literally 11 o'clock on the 31st of December 2020. Now the reason that the trust person wants to do that is in the words of the explanatory notes to have a functioning statute book, because what said is, look, the UK has been a member of the EU since 1972. EU law is inextricably linked to pretty much all aspects of UK legal life. Having left the EU, just to make sure the statutes keep working keep functioning. We need to preserve EU law as part of our, our domestic law. Two things to say about this first point, one A and one B column that I'm not aware of any other project ever that's tried to do this to freeze a whole body of law as at a point in time. 11 o'clock on the 31st of December 2020. Second, and actually more, more fundamentally, the point of this exercise, the reason we've got retained EU law is not, it absolutely isn't to keep EU law as part of our, and by our I mean the UK's juristic heritage. So what the 2018 act isn't trying to do is to say, oh, we were members of the EU, EU law has valuable things to teach us. We are going to keep this retained EU law because it's a good thing. It's not that that's not what it's trying to do at all. It's the opposite. The UK is, but it's left the EU. It's just that we have to keep you law for a while, because the statutes, all sorts of statutes can't function without it. So retained EU law doesn't reflect any sort of as I say, objective to retain EU law as part of the UK's juristic tradition. Rather, it's a legislative technique just to make sure the UK's domestic statutes can work. And we need to hang on to that thought. Second preliminary point, the undergraduates amongst you, I think wouldn't have got to this aspect of the internal market provisions yet, but two of the fundamental provisions, the free movement of persons, the freedom of establishment and the freedom to provide services cross border. There were two of the most important freedoms in EU law when the UK was an EU member state. They've gone, they've been excised in retained EU law by statutory instrument. So the reason that somebody who tells you that might sound sepulchral is not just because they're important, but because the enabling provision, the statutory provision that the minister used to get rid of establishment and services was section eight of the 2018 Act. What that says is ministers can promulgate, they can enact statutory instruments, but to cure deficiencies, I paraphrase, but it's a perfectly good paraphrase, in retained EU law. So it's where retained EU law, when we get to it, has got some rough edges. That's what section eight on its terms is there to do. So to use that section as an enabling provision to get rid of establishment and services is a big deal. Now I'm going to get straight to that there are all sorts of rules about EU law and how it works for cases that have reached the courts before 31 December 2020. I think we'll leave that. That's for another day. Let's get straight to the business end of the talk. Retained EU law, what is it? Before we get to why does it matter? Three categories. First, these are all in the EU withdrawal act 2018. Section two, EU derived domestic legislation. And what does that mean? It means any UK domestic legislation primary act or statutory instrument, which was enacted and I'm speaking broadly, but it's an incredibly wide definition. Either in under section two of the 1972 act or which which operate to ensure that the UK complies with its EU obligations or relate to EU law. So it's an incredibly wide definition. Any primary act, which relates to EU law counts as EU derived domestic legislation, it just does. So what does that mean? Catherine mentioned I'm a tax lawyer in the world's most boring taxes VAT. Now, take the VAT act. The VAT act 1994 is a primary act. It doesn't need to say we've left the EU so what it's still there. That's you derive domestic legislation. All right, because it was enacted on any of you to ensure the UK's compliance with EU obligations, all to do with the VAT principal VAT directive. There are other statutes, which may have been modified changed because, for example, the UK or another member state lost a case in the Court of Justice. And to the extent that provisions of that act have been modified to secure the UK's EU compliance. Well, they're EU derived domestic legislation. All right. So the third category and it's an annoying category. And it's a sort of category that gives lawyers a bad name. And it's, but take for example that the company's act 2006. Now, the company's act 2006 has, when the UK was an EU member state, it had to comply with, amongst other things, EU shareholder directives. But it turned out that the 2006 companies act and the 1985 companies act before it did comply without needing to be changed. Question is the company's act 2006 EU derived domestic legislation. It's not been enacted for the purpose of securing EU compliance. It's not been modified. But does it relate to EU law when in a way it does, because company law has to be EU, or it did when the UK was a member state, it had to be EU compliant. Now, it's, as I say, it's a rather silly annoying distinction that an act that has never been changed, but nevertheless is EU compliant. That means it falls outside the notion of EU derived domestic legislation. But it's a real distinction. Not a very useful one, except to lawyers. Because it goes outside the spirit of what retained EU laws trying to do. We can come back to that during questions. I think I'm just going to ask you to hold that thought. As to what does it mean for a domestic statutory provision to relate to EU law. The European Court had an analogous question when it was applying the Charter of Fundamental Freedoms, because that's engaged only when the circumstances engage EU law. And the Court of Justice adopted a very, very expansive notion as to what that means. If you adopt that sort of approach here, pretty much everything in the UK is retained EU law. Second category, this is section three of the 2018 act, direct EU legislation, regulations and decisions. Now, all of you, including undergraduates will know that regulations and decisions. They're legislative acts, all right, or the institutions and they are section three retained EU law, all right, but here be careful. Again, although I said VAT is a very boring tax and it is. It throws up some good examples. There's very important VAT implementing regulation called unimaginatively the VAT implementing regulation. It is expressly excluded from being retained EU law. Not in the EU withdrawal act 2018, but in a different act. The Taxation Cross-Border Trade Act 2018, section 42. Now, if you didn't know that was there, you wouldn't know. So there's going to be a real challenge to academics, to council appearing in cases to judges in making sure. That they're alive to these express exclusions. In category three, other recognized and available EU rights. This is in section four, what are they? They are the EU rights that were located by direct application of the treaties or directives. That's what these are. Trouble is recognized and available. Those terms aren't defined. What does that mean? Again, I'll give you a thought which you can hold and then we can come back to it during questions. I think recognized, given that retained EU law was all to do with trying to freeze EU laws, it was at 31st December 2020. Recognized means recognized by a court as part of its ratio and available means enforceable. So it has to be recognized as part of a ratio of a court that binds another court. So for example, in my world, in the tax world, cases start off in the first year tax tribunal. They don't bind anybody. It's not until the case goes to the upper tribunal that the upper tribunal because it's a court of record binds first year tribunals or the English High Court. It needs, I think, for a right to be available to have been part of the ratio of a court that can bind another court. I just want to hear, here's a point of irritation. The Charter of Fundamental Rights. This was a politically sensitive matter for the current government that didn't want the Charter of Fundamental Rights to have pretty much any application in UK domestic law post Brexit. Section five, subsection five of the 2018 Act has one of the dofters provisions I've ever come across. It says the Charter of Fundamental Rights doesn't apply post 1st January 2021, I part of phrase, but again it's perfectly good part of phrase, but it goes further. And this is something I've never seen before. European Court of Justice cases that refer to and apply the Charter of Fundamental Rights. You read those as if they refer to not the Charter of Fundamental Rights, but rather the analogous general principle of EU law. Whenever in my life. Have I seen a section that says read cases that talk about X but don't pretend they don't mean X they mean why. And this is problematic because on no planet is the Charter of Fundamental Rights fundamental rights a mere codification of general principles of course they draw on the common share traditions we all know that. You read the cases on general principles when he got a general principle, and there's a cross check as to whether that general principle is indeed a general principle and is it consistent with the Charter of Fundamental Rights. The whole point is, the Charter of Fundamental Rights is more than a codification of general principles. I'm going to say, it's talking about human dignity well let's look at the cases applying the general principles to do with human dignity and human dignity is problematic because there are cases that the European Court decided that tell you that different member states are permitted to inform notions of human dignity cases like Omegas Spielhallen with their own histories. It's a silly provision. I mentioned general principles, general principles of EU law. I'm going to come back to those, but insofar as these general principles. When the UK was a member state located rights, they would fall under retained EU law because of section four. But, but, as you say, hold the thought about general principles because their application has been heavily modified. All right, that's what retained EU law is. Not easy to find out always what it is, but that's what that's what section two section three and section four of the 2018 Act as it is. And so a particular primary act or an E regulation or a right that arises from the general that the direct application of the treaty is retained EU law. What about it. Section five tells you what what the consequences are and put short provisions which are retained EU law. And therefore, UK domestic law enacted pre 31st December 2020 supremacy applies. So if there's any consistency between retained EU law and the pre 31st December 2020 UK statute retain retained EU law trumps, it wins. Post 31st December so from the first of January 2021 onwards. Supremacy doesn't apply. Now, is that problematic. It's finicky, it's messy, but I don't think it's problematic. We do get into problems or when we come back as I said we would to the general principles. Now, general principles principle of effectiveness equivalence prohibition against nationality discrimination which morphed into the principle of equal treatment proportionality. So general principles after decisions of the Court of Justice, like man gold like you could have etchy, they applied on a free standing basis. They didn't. So, if somebody was relying on that EU rights, it was more than a principle of interpretation they didn't have to find words. So, in UK or in secondary legislation, or in UK implementing legislation, the principle just played as a substantive free standing principle. So the principle of effectiveness. That's what entitles someone to a new remedy. If otherwise the EU rights become excessively difficult to enforce that's changed that's gone. Although general principles counters retained EU law because of section four schedule one paragraph three of the 2018 act and what it's doing tucked away in a schedule is baffling. But in any event, you're told a general principle cannot found the cause of action. What does that mean, what it means. And I think it's binary. So the general principle can't of itself entitle you to remedies, it can't found the cause of action, which would in turn give you a remedy. It's interpretive only. Now this matters quite a lot. Take again let's let's go back to my world it's it's useful. There is one general principle called abuse of law. It's very much a, it's, it's, it's a product of continental juristic thinking. But in EU law, it's an established general principle. It means that if someone say a taxpayer does attack scheme that distorts the way that provisions are supposed to work to give them a tax advantage that nobody including the last person attended them to have a tax advantage of law can play as a general principle to simply take that advantage away from them to treat them as if they hadn't done an abusive transaction. The most recent example of that principle being in place a case that I did that went from the first year tribunal to the upper tribunal to the Court of Justice, back to the upper tribunal up to the Court of Appeal back to the first year tribunal called it took 10 years to litigate. And newie was a case where I was doing it for the taxpayer, the revenue were pleading that because it was a VAT avoidance scheme. That meant that setting up a company should just be ignored. You should tax this trader as if he hadn't set up a company. Why have they gone on about newie? Well, if it's right, if it's correct. The principles are interpreted of only where would that have put the revenue it can't give them a cause of action. The revenue might say, oh well, we don't need abuse to give us a cause of action. We can, we've got the power to do that we can raise tax assessments and we can then interpret those tax assessments by reference to abuse. Well, they might say that, but it's not obvious. We can't come to private applicants. What this means is that any any prospect of retaining the law giving you new remedies. Forget it. Forget it. This is qualified by a series of finicky rules. It's hard for general principles interpreted of only. However, and this is schedule one paragraph 39. If you're writing this down. What courts are told, if you're sitting as a judge is yes, yes, yes, general principles interpreted of only unless you're bound by a decision. I mean, as an upper tribunal judge, and I'm bound by the Court of Appeal, then I have to apply the Court of Appeal decision, even if it means applying the general principle and full. So you think, okay, all right, that's a bit messy, but it gets worse, because certain courts are entitled to ignore even pre 31st December 2020 decisions. The Court of Appeal, civil and criminal divisions, the inner house of the Court of Session Scotland, Court Marshall and the lands valuation appeal appeal court. They can all choose as of right to depart from pre 31st December 2020 Court of Justice decisions post 31st December 2020 decisions they have to have regard to them but no more on any of you so in a sense, those are things that they can look at and should look at but they're not bound by anyway, but the pre 31st December 2020 decisions, the Court of Appeal in England could turn that and say, you know what, we don't like factor time anymore. We're not going to be, we don't consider ourselves bound to apply it. There's an additional ground on which the Court of Appeal can depart from its own decisions, but it also makes it very difficult, because I am told general principle, say it's effectiveness. Interpretive only, oh no no I'm bound by the Court of Appeal, oh hang on. As the Court of Appeal departed from this in any context, I might be deciding a tax case but what about an IP case. So we need to know if the Court of Appeal. We need to do this too but they're more used to it, but the Court of Appeal we need to know. Not just if a Court of the Court of Appeal departs from a CJ EU Court of Justice decision. We need to know on what terms what are they doing. Are they abandoning the decision, or are they abandoning the principle laid down by that decision. Are they departing from a whole line of cases we need to know. I'll say this in parentheses, I've talked about general principles. It's not always easy to know whether a particular concept in the EU law is a general principle or not. I'll give you two examples, mutual recognition, the Casis mutual recognition and fiscal neutrality is VAT again, but mutual recognition, Casis. I wrote an over long very boring article that Catherine will recollect because she had to read it, which had massive footnotes, which I doubt anybody in the right minds ever read but where I said mutual recognition was a rather silly concept nobody needs it. Point is, if it's a general principle, it's hoovered up in what I've been talking about, it's interpreted of only. If it's not a general principle, but it's part of retained EU law, because you've got pre 31st December 2020 cases that refer to it. It's much harder to know on what basis you, you apply these cases. Fiscal neutrality is the same it's a principle of VAT that says if two types of supplier make the same kinds of supply they should be treated the same. It's used often as a surrogate for competition law. Last point I want to make sympathetic construction. When the UK was a member state. The English course and they do mean English that the Scots courts I think were more sensible, but the English courts. They took on this notion of sympathetic construction that comes from two places the loyalty clause and supremacy comes from two places. And they're told by the Court of Justice. Look, you've got to try and construe domestic legislation to be EU compliant if you possibly can. Fine. The English courts took a fantastically muscular approach. They went far beyond construction. They started disapplying words in a section. There was a case called IDT were purporting to implement sympathetic construction the constitutive phrase as saying X bracket. Unless it interferes with your EU rights close bracket. That's not construction. I'm going out about all this before I can work myself up into anti sympathetic construction rage. Answer the explanatory notes of the 2018 act. Think that sympathetic construction applies to retained EU law. I think that's just wrong. Ask yourself this sympathetic to what if you're construing retained EU law. If you derive domestic legislation directing you legislation other recognized and available EU rights constitutional architecture. Post Brexit is the withdrawal agreement brought into UK law by a different part of the EU withdrawal act 2018 retained EU law in the 2018 act we've just been talking about the internal market act. The devolution settlement so the Scotland at the Wales Act and the Northern Ireland Act. Each of which has its own very clear legislative agenda which will conflict with each other. And there is no way that you could look at these different statutes as being some sort of coherent. Parts of a constitutional assemblage. But the one thing we do know is that the UK is left. So, when you're construing retained EU law. Do you look at EU law and say, look, it's parentage this retained EU laws parentage comes from EU law itself particularly direct EU legislation but actually all of it. We should just carry on construing it in the same way as we always did. Absolutely not. The analogy is, and there's no one. There's no political baggage here of expertise colonies, which had colonial legislation, which was still there post independence. And the question then became how do we can screw this. And you'll find some very good jurisprudence telling you. You can screw it differently, because the world has changed, and it's constitutionally improper to not recognize that the world has changed. A gather from Lord and Bartels Australians adopt this in the first week of first year. I, I, I didn't know it until I looked into it to write about it. But, as I say there's some very good jurisprudence. And this doctrine is called local jurisdiction exception. It said look, put short the world's changes. There's a good example is a Jamaican case called careers for a tax lawyer it's one more boring case all to do with tax avoidance. What's interesting about it from the perspective of what we're talking about is Lord Hoffman says this Jamaican legislation is identical to UK legislation. But you don't consider the same of course you don't. This is Jamaican. It's very, very simple and straightforward he says. So, again, the explanatory note absolutely think sympathetic construction applies but that's the government saying this. And I think that's myself I think that's just wrong. So, I'll stop there. And I hope that that's some use and of some interest and and I'm up for questions. Thank you very much indeed that was absolutely fascinating. I'm looking myself at the 2018 act and struggling with it personally and you have shed considerable amounts of light and thus overcoming the heat with which I was experiencing this pretty ghastly piece of legislation so thank you very much indeed now. I encourage the audience to ask questions in the Q&A.