Public Law Update #3: The EU (Withdrawal) Bill, legal certainty and the rule of law

The third edition of Public Law was published by Oxford University Press in May 2017. This is the third in a series of posts by the authors, Mark Elliott and Robert Thomas, taking the 2017 election and Brexit as reference points and updating readers on recent developments in the field. These posts are based on updates first published by Oxford University Press in the book’s Online Resource Centre.

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Screen Shot 2017-07-20 at 16.58.20When she spoke to the Conservative Party conference in October 2016, the Prime Minister, Theresa May, promised that a ‘Great Repeal Bill’ would be enacted for the purpose of repealing the European Communities Act 1972. Such legislation — albeit with the rather more modest-sounding title of the European Union (Withdrawal) Bill — has now been introduced into Parliament. And, if enacted in its current form, it certainly will do as the Prime Minister promised, by repealing the 1972 Act. However, repealing the 1972 Act — or repealing anything, for that matter — is in fact only the tip of the iceberg.

In substance, the Bill repeals very little, for its primary purpose is not so much to get rid of the European Communities Act as it is to preserve the vast majority of the EU law that presently applies in the UK. That is a sensible approach. If it were not adopted, then the likelihood is that there would be enormous gaps in domestic law once the UK left the EU. To avoid this sort of legal ‘cliff-edge’, the Bill will, in effect, take a snapshot of EU law as it applies immediately before Brexit, and then convert that EU law into domestic law. The Bill will also give Ministers extensive powers to correct ‘deficiencies’ in that domesticated body of EU law in order, for instance, to enable it to be adapted so that it makes sense once the UK is no longer part of the EU system. This sounds relatively straightforward: repeal the ECA, preserve EU law, and then ‘correct’ it so that it is fit for purpose post-exit. In fact, however, very little about the Bill is straightforward. We examine its implications for the UK’s territorial constitution and for the balance of power between the UK Parliament and Ministers below. To begin with, however, we examine the core features of the Bill that operate to convert EU law into domestic law. In doing that, the Bill identifies and distinguishes between three categories of law.

First, there is what clause 2 of the Bill calls ‘EU-derived domestic legislation’. This is legislation that has been enacted for the purpose of implementing EU directives or for other purposes connected with the UK’s 0bligations in relation to its EU membership. An obvious concern here is that secondary legislation made under the ECA so as to implement directives will fall away when the ECA itself is repealed. The Bill will prevent that from happening, by providing a legal basis on which such secondary legislation can continue in force. However, the category of ‘EU-derived domestic legislation’ extends much more broadly. It even includes Acts of Parliament, such as the Equality Act 2010, that implement EU obligations. On the face of it, this is puzzling. Why should the Bill pretend to ‘save’ UK legislation that does not need to be saved? After all, nothing in the Equality Act 2010 will be jeopardised by the repeal of the ECA. The answer is that the Bill deliberately draws the category of ‘EU-derived domestic legislation’ wide so that it counts as ‘retained EU law’. And, as we will see, once something counts as ‘retained EU law’, the constitutional implications are very substantial: law that falls into that category operates as a limit on the powers of the devolved institutions and is subject to extensive powers of amendment by Ministers.

Second, clause 3 of the Bill identifies ‘direct EU legislation’ as another form of ‘retained EU law’. Broadly speaking, EU legislative instruments that have direct effect fall into this category. The obvious example, then, is EU regulations. The issues that arise here are very different from those that arise in relation to ‘EU-derived domestic legislation’. Legislation of the latter type is already part of domestic law, albeit that much of it needs to be ‘saved’ so that it does not wither when the ECA is repealed. In contrast, EU instruments such as regulations are not part of domestic law in the same way. They are enforceable in UK courts thanks to the doctrine of direct effect. But they are not part of UK law in the sense that there are existing pieces of domestic legislation that give effect to them. They have effect in the UK only because section 2(1) of the ECA allows directly effective EU law to operate within the domestic legal system. That provision operates as the ‘conduit’, or pipeline, through which EU law, whatever it might be at any given time, comes into the UK system. The Bill does not leave the pipeline open: new EU law will not enter the UK legal system. Instead, the Bill in effect freezes EU law as it applies to the UK immediately before exit, and takes that body of law and turns it into domestic law. Future changes to EU law will not produce corresponding changes in the UK (unless the UK chooses to amend retained EU law so as to mirror changes at EU level).

Third, clause 4 captures certain directly effective EU law that is not covered by clause 3. This includes, most obviously, directly effective Treaty provisions. The effect of clause 4 is that all such provisions will become part of domestic law when the UK leaves the EU. But many such Treaty provisions are unlikely to make sense following Brexit, since a good proportion of them are concerned with reciprocal arrangements — such as the operation of the single market and the customs union — that may well have no application to the UK post-exit. However, this is already anticipated by the Bill, since, as already mentioned, it allows retained EU law to be amended (or repealed) by Ministers. The expectation, therefore, is that Treaty provisions that make no sense post-exit will be repealed either by secondary legislation made under the Bill or by the other primary legislation in specific subject areas — such as immigration and agriculture — that the Government intends to have enacted by Parliament before exit day.

Taken in combination, then, clauses 2–4 capture different kinds of EU law which, together, will form a new legal category of ‘retained EU law’. The reasons for adopting this sort of general approach are sound and, as noted above, failing to preserve EU law would risk a form of legal ‘cliff-edge’ that would risk chaos. However, a number of questions arise about the implications of creating this new category of ‘retained EU law’: questions that implicate fundamental constitutional principles and issues, including the rule of law, the separation of powers, and the stability of the UK’s territorial constitution.

‘Retained EU law’, legal certainty and the rule of law

We have seen so far that ‘retained EU law’ will consist of the snapshot of EU law taken just before Brexit and turned, where necessary, into domestic law. An important question to which this gives rise — but which goes unanswered by the Bill as it currently exists — is exactly what, in legal and constitutional terms, ‘retained EU law’ will be. As far as ‘EU-derived domestic legislation’ is concerned, the answer is reasonably straightforward: its post-exit status will be the same as its pre-exit status. The Equality Act 2010 will remain primary legislation; secondary legislation made under the ECA to implement directives will remain secondary legislation. But what about ‘direct EU legislation’ that is domesticated by clause 3 and Treaty provisions that made part of domestic law by clause 4 of the EU (Withdrawal) Bill? Such instruments, never having been part of domestic law in a relevant sense, have never had any domestic legal status. So what will such instruments be once they are fully domesticated? Will they be primary legislation? Or secondary legislation? Or has the Bill somehow implicitly created a new category of law that is neither primary legislation nor secondary legislation?

These questions matter for a number of reasons. Imagine, for instance, that a question arises about whether powers in other legislation can be used to amend ‘retained EU law’. (This question might well arise because, as we explain below, the powers in this Bill will lapse after a certain period of time.) If ‘retained EU law’ is primary legislation, then only ‘Henry VIII powers’ — that is, powers that authorise the amendment of Acts of Parliament — contained in other legislation would allow its amendment. In contrast, ‘retained EU law’ will be more amenable to amendment if it is only secondary legislation. Or imagine that a question arises about whether some piece of ‘direct EU legislation’ saved by clause 3 of the Bill is compatible with common law constitutional rights or some other principle that is enforceable by way of judicial review. Will such legislation be judicially reviewable in the first place? If it has the status of primary legislation, presumably not; but if it only has the status of secondary legislation, why should it not be open to judicial review?

Given the importance of these questions, it is perhaps surprising that the Bill does not answer them. The only guidance it gives is to say that for the purpose of the Human Rights Act 1998, ‘retained direct EU legislation’ is to be treated as primary legislation. As a result, courts will not, for instance, be able to quash such legislation on the ground that it is incompatible with Convention rights protected by the HRA. However, the Bill says nothing, one way or the other, about whether ‘retained direct EU legislation’ will otherwise count as primary or secondary legislation. It appears that instead of assigning it any global status, the Bill enables Ministers to decide what the status of individual pieces of ‘retained direct EU legislation’ should be, using powers granted by clause 17 of the Bill. But this also raises some difficult issues, not least because it means that Ministers will presumably be able to choose to shield certain elements of ‘retained EU law’ from judicial review by stipulating that they are to be considered primary legislation.

These issues are complicated even further once clause 5 of the Bill is taken into account. It says that the ‘principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day’ but that ‘the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’. The intention seems to be that post-exit UK law (e.g. Acts of Parliament enacted after exit day) will not be vulnerable to the supremacy principle, but that pre-exit UK law will be. On this view, a court could, for instance, ‘disapply’ an Act of Parliament passed prior to Brexit on account of its incompatibility with ‘retained EU law’, just as the House of Lords disapplied parts of the Merchant Shipping Act 1988 in the Factortame case on account of their incompatibility with EU Treaty rights.

However, there are two difficulties here. The first is that it is hard to see how the ‘principle of the supremacy of EU law’ could sensibly apply post-exit. Once the UK has left the EU, and once the ECA has been repealed, there will, for the purpose of the UK legal system, be no ‘EU law’ that can be ‘supreme’ over domestic law.  Second, even if we overlook that conceptual difficulty, the Bill does not specify what kinds of ‘retained EU law’ will benefit from the supremacy principle, thus making them capable of overriding domestic law. So while the Bill appears to preserve (in a limited form) the supremacy principle, it is unclear whether and, if so, to what extent it will actually apply once the Bill takes effect.

The issues highlighted above illustrate a broader point. It would be naïve to deny that the EU (Withdrawal) Bill is, of necessity, addressing a set of very complex and interlocking legal issues. The fact that the Bill itself is complicated should therefore not take anyone by surprise. But if the Bill leaves unanswered the sorts of questions raised above, there will be real risks to the principle of legal certainty — which is a core component of the rule of law itself. The Bill is not like most other pieces of legislation. It is not a law that is confined to a particular topic. Rather, it will serve a key constitutional role, acting as the basis for a substantial part of the UK’s post-exit legal system. It is important, therefore, that the Bill be clarified so as to provide greater certainty about how the new category of ‘retained EU law’ operates, and how it relates to other forms of UK law.