With the ink barely dry on the EU (Withdrawal) Act 2018, the Government has now published its White Paper on the proposed Withdrawal Agreement Bill. The purpose of this post is simply to highlight, and to offer to initial thoughts on, a small number of issues of general constitutional significance raised by the White Paper. What follows is necessarily subject to the caveat that the Withdrawal Agreement Bill itself has not yet been published, meaning that a great deal of the technical detail remains to be seen.

The need for the Withdrawal Agreement Bill

To the casual observer, the fact that such a Bill is in the offing may seem surprising. After all, the just-passed Withdrawal Act is supposed to be the flagship piece of Brexit legislation that ensures legal continuity and a ‘functioning statute book’ post-exit. As explained in another post, the Withdrawal Act is designed to take a snapshot of EU law immediately before exit day, and to convert that EU law into domestic law. In this way, gaping black holes in post-exit UK law are to be avoided. All of this, however, is premised on the notion that the UK will fully leave the EU on 29 March 2019, and that thereafter EU law per se— as distinct from EU law that has been converted into domestic law — will not apply in the UK.

As some colleagues and I pointed out in a working paper published last year, the obvious difficulty with this model is that it does not cater for the possibility of a transitional — or, as the UK Government prefers, ‘implementation’ — period. It has been provisionally agreed by the UK and the EU that such a period will run from 29 March 2019 to 31 December 2020. During that time, EU law will continue to apply in the UK. And, crucially for present purposes, this means EU law proper, not a domesticated, frozen-on-28-March-2019 version thereof. Yet in the form in which it was passed by Parliament only a few short weeks ago, the Withdrawal Act makes no allowance for this, being premised upon full departure — and so the complete falling away of EU law per se — as of 29 March 2019.

That Parliament would go to the trouble of enacting such a fiendishly complex piece of legislation without apparent regard for a widely hoped-for scenario involving a transitional agreement may appear downright bizarre. And it certainly is odd that these questions did not feature more prominently in debate concerning the Withdrawal Act. Nevertheless, there is undoubtedly merit in having the Withdrawal Act in this form on the statute book, given that it will have to be pressed into service in the event of a no-deal Brexit. In such circumstances, no transitional or implementation period will occur, and the Withdrawal Act will be needed in its current form. The difficulty, particularly given the parlous state of the Brexit negotiations between the EU and the UK Government, is that it remains entirely unclear whether there will be any withdrawal agreement. As a result, Parliament is obliged to legislate in the dark, not knowing which of two drastically different situations will apply come the end of March next year.

The obvious solution, then, is in effect to have two versions of the Withdrawal Act available, so as to cater for two radically contrasting sets of circumstances: the version which is currently on the statute book, which will be needed in the event of no deal, and an alternative version that can be activated if a withdrawal agreement involving a transitional period is reached. It is the latter scenario with which the Withdrawal Agreement Bill, described in the Government’s recently published White Paper, is concerned.

Citizens’ rights

Put simply, the Bill is intended to do whatever is necessary in domestic legal terms to fulfil the UK’s side of any withdrawal agreement. An important aspect of that will involve making good on undertakings as to citizens’ rights. The White Paper deals at some length with that issue, but in this post I mention only one point that arises concerning general principles of constitutional law. It concerns the extent to which the Bill can act as a guarantee of citizens’ rights, and as a brake upon a hypothetical future government or Parliament that sought to renege on what is agreed with the EU in this area. On this point, the White Paper seeks to offer the following reassurance:

If a future Parliament decides to repeal any part of the primary legislation implementing the citizens’ rights part of the [Withdrawal] Agreement, the Bill will provide that Parliament must activate an additional procedural step. This approach is consistent with other procedural steps introduced by Parliament, such as the referendum locks of the European Union Act 2011, and creates an additional layer of reassurance to EU citizens in the UK that their rights will be protected.

The White Paper does not stipulate what this ‘additional procedure step’ will be. However, the question arises whether, in the first place, it is legally possible for Parliament to require such a step to be taken. That is not to suggest that Parliament could not legislate for the taking of such a step: but the question arises of what would happen if, in the future, Parliament were to seek to renege on citizens’ rights provisions in the withdrawal agreement legislation without complying with the procedural requirements set out therein. To that question, UK constitutional law supplies no clear answer, it being uncertain whether Parliament can impose upon itself requirements that, once imposed, it is legally obliged to follow. I considered this issue in a post published last year, following the Prime Minister’s Florence speech; and while it is worth flagging the issue again at this stage, more detailed comment is best deferred until the text of the Bill is published.

Relationship with the Withdrawal Act

Leaving citizens’ rights to one side, the main constitutional contribution of the Withdrawal Agreement Bill will be to modify the effects of the Withdrawal Act. Here, four points are worth highlighting. First, one of the key characteristics of the intended transitional period is that EU law will to continue to apply in the UK. And that, in turn, means that the domestic legal conduit for EU law — namely, the European Communities Act 1972 (‘ECA’) or a functional equivalent — will remain necessary throughout the transitional period. The difficulty here is that, with great fanfare, section 1 of the Withdrawal Act provides that the ECA ‘is repealed on exit day’ — ‘exit day’ being, according to section 20(1), ‘29 March 2019 at 11.00 pm’.

An obvious solution would be to redefine ‘exit day’ (at least for this purpose) so that it means 31 December 2020. However, according to the White Paper, such a course will not be taken. Indeed, the White Paper insists that ‘exit day, as defined in the EU (Withdrawal) Act 2018, will remain 29 March 2019’, while the Act will continue to provide that the ECA is repealed on exit day. That exit day retains its original meaning and that the Withdrawal Act continues to state that the ECA is repealed on exit day are evidently laden with political significance for a Government straining to keep Brexiteers on board. However, such political posturing will be stripped of legal significance by the Withdrawal Agreement Bill, which will ‘amend the EU (Withdrawal) Act 2018 so that the effect of the ECA is saved for the time-limited implementation period’. In other words, the ECA (or at least its key provisions) will not, in any functionally meaningful sense, be repealed on exit day: rather, it will remain legally effective for a further 21 months, while the transitional period runs its course. The irony need hardly be pointed out: the ‘Great Repeal Bill’, as the Withdrawal Act was originally known as a result of prime ministerial hubris, was always going to preserve rather than ‘repeal’ EU law, but now, at least for the time being, it does not even repeal the ECA itself.

Second, and as a result of the non-repeal of the ECA, the Withdrawal Agreement Bill will ensure business more or less as usual in terms of the relationship between EU and UK law. Thus the ECA will continue to ascribe direct effect to relevant provisions of EU law; it will maintain the primacy of directly effective EU law over all domestic law, including over Acts of the UK Parliament; and it will preserve the legal basis upon which most EU-derived domestic legislation stands. This underlines the legal fact that whatever political gloss is placed upon matters, the ECA will continue to operate, and the structures of EU law — including the doctrines of direct effect and primacy — will continue to apply in the UK, until the end of any transitional period.

Third, it is worth emphasising that the Withdrawal Agreement Bill will ensure legal business as usual in full sense: that is, it will vouchsafe the domestic legal effect of all EU law, including EU law that is comes into force after exit day. Thus, new pieces of EU law that have direct effect will automatically apply in the UK, even if they are made only after the UK has left the EU. Similarly, the UK will remain bound to implement non-directly effective EU legislation — and the Government will retain a legal basis, in the form of the ‘saved’ ECA, for doing so — during the transitional period. In this sense, the UK will be a ‘rule-taker’ during that period. The White Paper acknowledges this, albeit that the Government self-evidently puts on a brave face. For instance, it says: ‘The Government supports the UK Parliament’s strong scrutiny function [in relation to EU law], and will continue to support and facilitate this for as long as EU legislation will continue to affect the UK.’ But what the White Paper leaves unsaid is that whatever scrutiny the UK Parliament carries out post-exit, the UK Government will no longer be in a position to play a full part, as a Member State, in shaping new EU law.

The fact that post-exit EU law will continue to apply in the UK during transition raises a further complication when this is viewed in relation to the existing Withdrawal Act. As presently drafted, the Act turns into ‘retained EU law’, i.e. domestic law, EU law as it applied to the UK ‘immediately before exit day’. If the Bill were to leave this aspect of the Act unamended in the event of a transitional period being agreed, then at the end of transition the legal clock would presumably be turned back to 29 March 2019, such that post-exit EU law that had applied in the UK during transition would, upon the expiry of the transitional period, be excised from UK law (which would then recognise only pre-exit day EU law). This would be a very odd state of affairs, not least because it would be incompatible with the overriding aims of ensuring legal continuity and certainty. It must be assumed, therefore, that the Bill will amend the Act so that new EU law that applies in the UK during the transitional period will be swept into the category of ‘retained EU law’, along with all pre-exit day EU law. This underlines a point made above: that whatever political symbolism there might be in insisting that the Act will continue to prescribe that ‘exit day’ means 29 March 2019, the legal reality will be very different.

Fourth, one of the most controversial aspects of the Withdrawal Act lies in the extensive powers it accords Ministers to amend UK law, including ‘retained EU law’ (such as EU law that is converted into domestic law by the Act). However, in the short term, these powers will be of limited utility and will be little needed if a transitional period is agreed. While it is true that the powers are not confined to amending ‘retained EU law’, making such amendments will be the primary use to which the powers are put. Yet during a transitional period, ‘retained EU law’ cannot meaningfully exist, for EU law itself will continue to apply in the UK under the terms of the withdrawal agreement and pursuant to the ‘saved’ ECA. The Withdrawal Act will thus need to be amended such that the creation, or at least the population, of the domestic legal category of ‘retained EU law’ is postponed to the end of the transitional period, rather than occurring on exit day. The White Paper acknowledges this: ‘the conversion of EU law into “retained EU law” … [will] take place at the end of the implementation period’. In the light of this, the Bill will extend by 21 months the period during which the amendment powers can be used: they will now be available to Ministers until 31 December 2022, i.e. two years after the end of the hoped-for transitional period. In spite of this, statutory instruments are already being drafted with the intention that they will be made under the powers granted by the Withdrawal Act in the event of a no-deal Brexit, even though such statutory instruments will be unnecessary (at least in the short term) should a transitional period be agreed.

Managing uncertainty

Two issues raised by the proposed Withdrawal Agreement Bill — and its relationship with the already-enacted Withdrawal Act — are perhaps particularly striking. The first is the sheer complexity of the legislation and of the domestic legal regime that it bequeaths. If the Withdrawal Act seemed complicated — which it is — then how much more complex matters will become when that Act is overlaid and amended by the new Bill.

The second issue (which contributes to the first) is the conditionality of the already extraordinary legislative programme that is being undertaken around Brexit. Such conditionality is observable at two levels. At the highest level of abstraction, it can be seen in the relationship between — and the need for both of — the Withdrawal Act and the Withdrawal Agreement Bill, the latter being a means of moulding the former to the requirements of an as yet unfinalized (and perhaps never to be concluded) withdrawal agreement. At a micro level, it can be seen in myriad instruments that are currently being made under the Withdrawal Act, so as to amend retained EU law and to make other provision arising from the anticipated consequences of Brexit, but which may turn out not to be needed — or at least not to be needed yet — if a withdrawal agreement is reached and a transitional period adopted.

This bifurcated legislative programme speaks volumes about the degree of uncertainty that the UK is currently facing. Come 29 March 2019, the legal and political landscape of the UK will take one of two starkly different forms. Either it will, for the following 21 months, be business more or less as usual, thanks to a transitional agreement, or the UK will have crashed out of the EU without any such cushion. The crucial point is that it is currently impossible to know which of those two scenarios will materialise; yet by the time that is known, it would likely be too late to start passing the necessary domestic legislation. As such, lawmakers have no choice but to acknowledge that they are legislating in the dark and to proceed accordingly — even if that means, in effect, enacting two alternative versions of the already-Byzantine withdrawal legislation.

I am grateful to Jack Williams of Monckton Chambers for his very helpful comments on an earlier draft of this post. The usual disclaimer applies.

Posted by Mark Elliott

Mark Elliott is Professor of Public Law at the University of Cambridge, a Fellow of St Catharine's College, Cambridge, and Legal Adviser to the House of Lords Constitution Committee. All views on this blog are expressed in a purely personal capacity.