What if ‘exit day’ is not redefined in domestic law?

I wrote yesterday about the statutory instrument that the Government has laid before Parliament so as to realign the domestic definition of ‘exit day’ in the European Union (Withdrawal) Act 2018 (EUWA) with the European Council’s decision to extend the Article 50 period to 12 April or 22 May (depending on whether the Withdrawal Agreement is approved by the House of Commons by 29 March). In yesterday’s post, I explained that a failure to redefine ‘exit day’ in domestic law would result in serious domestic problems by causing Brexit-related legislation due to enter into force on ‘exit day’ to take legal effect prematurely (that is, before the UK had actually left the EU, which now will not happen until 12 April at the earliest). This would be problematic because much of that Brexit-related legislation is incompatible with EU law, which (provided that the European Communities Act 1972 (ECA) remains in force) EU law will continue to apply in the UK until at least 12 April, and will retain priority over domestic law until then.

As far as the ECA is concerned, I said in yesterday’s post that a further apparent problem — that that Act would be repealed too early if ‘exit day’ was not redefined — would not in fact arise. That is so because, puzzlingly, the Government still has not brought into force section 1 of the EUWA, which says that the ECA ‘is repealed on exit day’. (Nor are sections 2-7 in force; among other things, this means that the definition of ‘retained EU law’, which is pivotal to provisions that are already in force, has not yet taken legal effect.) This means that even if ‘exit day’ were still defined as 29 March, section 1 of the EUWA would not repeal the ECA on that date because section 1 would not, in the first place, be in force.  

But would it be lawful for section 1 of the EUWA not to be in force by 29 March if, by then, that date was still ‘exit day’ under the EUWA? It is at least arguable (as Sir Stephen Laws has noted) that it would not be lawful for the Government to fail to bring section 1 into force by ‘exit day’ as statutorily defined. Such an argument would turn upon the proper interpretation of section 25(4) of the EUWA. It provides that certain provisions of the EUWA — including section 1, which repeals the ECA on ‘exit day’ — shall ‘come into force on such day as a Minister of the Crown may by regulations appoint’. Evidently, this confers significant discretion on Ministers as to whenrelevant provisions enter into force. However, no Ministerial discretion is wholly unfettered, and it is necessary to consider what the limits of this particular discretion might be.

In the Fire Brigades Union case, a majority of the Appellate Committee of the House of Lords held that a commencement power in the Criminal Justice Act 1988 did not oblige the Minister to bring the relevant provisions of the Act into force at any particular time (or ever), but that there was, implied within the commencement power, an obligation to keep under consideration the question of whether the provisions concerned should be brought into force. Thus it would potentially have been lawful for the Minister periodically to consider bringing the provisions into force and to decide, on each occasion, that the time was not ripe; but it was not lawful for the Minister to resolve that he would never bring the provisions into force.

How might such an analysis apply in the context of the EUWA? In one important respect, the context is different. Whereas the purpose of the legislation that was at stake in the Fire Brigades Union case was not tied to any particular event or date, the same is not true of the EUWA. The whole scheme of the EUWA is oriented around a series of fundamental legal changes, including ECA repeal, taking effect on ‘exit day’. How this might impact our interpretation of the commencement power in section 25(4)? Ought it to be read, like the power in the Fire Brigades Union case, as imposing only an implied duty to consider whether to bring relevant provisions into force, while creating no obligation to bring those provisions into force by some particular date? Perhaps not. Given the centrality of ‘exit day’ to the whole scheme of the EUWA, it is at least arguable that the commencement power is subject to an implied obligation to bring relevant provisions, including section 1, into force by ‘exit day’. Failure to do so would frustrate the purpose of the Act. On this analysis if, by 11.00 pm on 29 March, ‘exit day’ has not been redefined in the EUWA, then ‘exit day’ will, as a matter of domestic law, have arrived. At that point, Ministers will be in breach of their implied obligation under section 25(4) to bring relevant provisions of the EUWA into force by ‘exit day’.

None of this is to suggest that the Government acted unlawfully by agreeing with the European Council that the Article 50 period should be extended. This is a separate question. Section 20 of the EUWA clearly presupposes that the Government can make such an agreement with the European Council prior to any statutory instrument being laid to amend the definition of ‘exit day’; indeed, the scheme of section 20 is such that a statutory instrument could not be laid unless the UK Government had agreed an Article 50 extension with the European Council. However, on the analysis set out above, once an extension is agreed, a refusal by Parliament to endorse a statutory instrument amending ‘exit day’ cannot lawfully be circumvented by a ministerial refusal to bring the EUWA fully into force by the date specified in the Act (i.e. 29 March).

This does not mean that a parliamentary omission to amend ‘exit day’ would cause the UK to leave the EU earlier than the new date as agreed with the European Council (i.e. 12 April or 22 May). That is so because the date of the UK’s departure from the EU is a matter of EU law and cannot be altered merely by changing (or not changing) ‘exit day’ in domestic law. But it does underline the importance of ensuring that parliamentary time is made for the approval of the statutory instrument by the end of this week. These issues would straightforwardly have been avoided had the EUWA simply defined ‘exit day’ by reference to the date on which the EU Treaties cease to apply to the UK. This would have automatically aligned the domestic definition of ‘exit day’ with the date of the UK’s departure from the EU under EU law, thus ensuring that any change to the latter would immediately have been mirrored by the former.

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