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EU (Withdrawal) Bill: Complications and controversies - Toby Fisher and Admas Habteslasie

EU (Withdrawal) Bill: Complications and controversies 

The Great Repeal Bill was trailed as a simple, elegant solution to the complex problem of untangling the Gordian knot of European and domestic law. Now that it is here, titled less ambitiously as the European Union (Withdrawal) Bill, it is neither simple, nor elegant. Running to more than 60 pages, the Withdrawal Bill simply highlights the complexity of the task ahead. With only around 250 Parliamentary sitting days before the Article 50 timeframe expires, our MPs won’t have much time for whistling…  

The basic mechanism of the Withdrawal Bill comprises two elements:

(i) Clause 1 repeals the European Communities Act 1972;

(ii) Clause 2 preserves EU law as it applies in the UK on ‘exit day’.

Exit day is to be set by Ministers in secondary legislation (Clause 14(1)) and need not, it appears, be the day on which Article 50 of the TEU effects the UK’s withdrawal from the EU as a matter of international and EU law.

So far, so simple. But then the complications and controversy arise.

Some European law more preserved than others

The first matter of controversy is the removal of rights. Despite Government assurances in the White Paper that rights and obligations ‘will not be subject to sudden change’ (1.24) and that EU treaty rights ‘that can be relied on directly in court by an individual will continue to be available in UK law’ (2.5, 2.11), the clause 2 preservation of EU law in domestic law is subject to two striking exceptions that have the effect of removing key rights arising from the EU treaties.

First, the Charter of Fundamental Rights is ‘not part of domestic law on or after exit day’: clause 5(4). This is perhaps an unsurprising provision, given the UK’s explicit opt-out from the Charter and the controversial way in which the Court of Justice of the European Union found that it nonetheless has binding effect on the UK (see N. S. (C‑411/10)). For some time, the Government has trailed its intention to bring to an end the influence of the Charter: see, for example, this speech of Michael Gove (then Lord Chancellor) given in April 2016. But that doesn’t change the fact that this appears to result in exactly the sudden change to rights and obligations that the government promised would not arise from the Bill.

Second, the Francovich rule is abolished: schedule 1, para.4. The Francovich rule allows individuals and organisations to sue the UK government in damages for a breach of its EU law obligations. Its abolition is striking, particularly because it appears to have retrospective effect. That is, even if a breach of EU law took place well before exit day, it will no longer be possible to sue the government for damages unless a claim was issued before exit day (see schedule 8, para.27). That amounts to a drastic removal of directly effective rights. 

The revenge of Henry VIII

The second controversial element of the Withdrawal Bill is the extent to which it provides that post-Brexit domestic arrangements are to be effected through the exercise of executive power. Most notably:

(i) Ministers have powers by regulations to prevent, remedy or mitigate any failure of retained EU law to operative effectively or ‘any other deficiency in retained EU law’: clause 7(1). This power, if interpreted in light of clause 7(2)(f), which includes a situation where EU law does not contain functions or restrictions which it is ‘appropriate to retain’ (and is not derived from a directive in force before exit day) as a deficiency, appears to be very broad.

(ii) Ministers can, by regulations, make such provision as they consider ‘appropriate’ to prevent or remedy any breach of international law arising from the withdrawal of the UK from the EU; their powers extend to the imposition or increase of taxation: clause 8(1) and (3) (contrast the latter with clause 7(6)).

(iii) Ministers can by regulations make such provision as considered appropriate for implementing the withdrawal agreement if they consider that ‘such provision should be in force on or before exit day’ - again, on its face, a very broad power: clause 9.

Perhaps the most striking aspect of the powers described above is that they appear to include a power to amend primary legislation passed or made before the passing of the (eventual) Withdrawal Act: clause 17(2) and (3).

It is worth thinking about the scope of the executive power conferred by the Act. Although the power to make regulations is not limitless (Ministers may not, for instance, amend the Human Rights Act, create new criminal offences or (save under the Clause 8 power) impose new taxes under powers conferred by the Bill), it is extraordinarily wide. In straightforward cases, one can see that the powers may be used to amend legislation so that references to the European Commission are changed to references to, for example, the Environment Agency. One can also contemplate the powers being used to create a new public authority to replace the European Commission in an area of policy. But the power to remedy a failure of retained EU law to “operate effectively” may extend well beyond those examples and may involve consideration not merely about procedural effectiveness but also substantive effectiveness. For example, one can contemplate a situation in which a Minister uses the power to amend retained EU environmental law because it is not “operating effectively” by acting as a barrier to much needed housing development. Whether that is a permissible use of the power will be a matter for the courts: the potential for substantial amounts of litigation is clear.    

The powers in clauses 7, 8 and 9 are time limited such that they do not persist beyond either two years after exit day (clauses 7 & 8) or exit day (clause 9). Regulations under clauses 7-9 which establish a public authority, provide for an EU function to be exercised by a UK public authority, impose a fee for a public authority function, create or widen a criminal offence or create or amend a power to legislate (or amend the Act itself) are subject to the affirmative resolution procedure: Schedule 7, Part I, para.1. & Part II, para.5-6. All other powers to make regulations are subject to the negative resolution procedure. The effect of those provisions should not be underestimated: Parliament will need to review and approve a deluge of statutory instruments between now and exit day to ensure that no lacunas arise in the transition from EU to domestic law while at the same time acting as a check on over-exuberant executive power. Given the number of sitting days between now and Brexit, MPs are going to be busy!

A naked power grab?

The third controversial element of the Withdrawal Bill relates to devolution. The First Minister of Wales has described the Withdrawal Bill as a ‘naked power-grab’ and there is plainly a question as to the compatibility of the Withdrawal Bill’s provisions in relation to the devolved administrations and the convention that Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature (the Sewel Convention).

Clause 11 inserts into the provisions of the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 dealing with the legislative competences of the respective devolved legislatures provisions precluding those legislatures’ abilities to modify, or confer power to modify, retained EU law (see also Schedule 2, Part I, para.2(3) and Schedule 2, Part II, para.15). These provisions are subject to exceptions where ‘the modification [of retained EU law] would, immediately before exit day, have been within the legislative competence’ of the respective legislature or where an Order in Council provides that the restriction is not to apply. But the powers granted to devolved authorities to deal with deficiencies in retained EU law are subject to the obtaining of the consent of a Minister of the Crown where such regulations are to come into force before exit day or remove reciprocal arrangements: Schedule 2, Part I, para.5.

The intended effects of the devolution provisions are to ensure that no further powers are granted to the devolved legislatures by virtue of Brexit and to ensure that there is a centralised, streamlined process for legislating for Brexit. On one view, that makes sense. However, the contrary can also be said: where EU law currently falls squarely within the field of competence of the devolved administrations, one might have expected the domestication of that law, and the power to amend that law, to fall within the power of those devolved administrations. As matters stand, both the Welsh and Scottish Governments have indicated an intention to oppose the Bill in its current form.

A matter of interpretation

Finally, a point of complication rather than controversy, is how the Withdrawal Bill makes provision for ending the supremacy of EU law and interpreting retained law post Brexit.

The Bill provides an answer to the moot problems many of us grappled with at Law School. EU law may have flowed into our estuaries and up our rivers, but it can flow backwards.

First, clause 5(1)-(2) provides that the principle of supremacy of EU law does not apply to law passed on or after exit day, and only applies in relation to retained EU law ‘so far as relevant to its interpretation’.

Second, as from exit day onwards, courts and tribunals:

(i) are no longer bound by decisions of the European Court and cannot refer any matter to it: clause 6(1);

(ii) need not have regard to anything done (on or after exit day) by the EU or any EU entity (though is not precluded from having such regard).

Third, the Withdrawal Bill sets out more complex provisions to deal with the position as to retained law. In short:

(i) A court or tribunal, in deciding any question as to the validity, meaning or effect of retained EU law, is to decide such a question in accordance with retained case law and retained general principles of EU law and having regard to the limits of EU competencies (as before exit day): clause 6(3).

(ii) However, no court or tribunal is bound by any retained domestic case law (i.e. relating to EU law matters as at exit day) that it would not otherwise be bound by: clause 6(4)(c).

(iii) The UK Supreme Court is not bound by any case law of the European Court as at exit day: clause 6(4)(a).

(iv) In deciding whether or not to depart from judgments of the European Court, the Supreme Court or the High Court of Justiciary must apply the same test that would apply in deciding whether to depart from their own case law: clause 6(5).

The reference to ‘retained case law’ at clause 6(3) includes both domestic case law and EU case law: clause 6(7). Thus, the status of European Court judgments post-exit day would appear to be by virtue of clause 6(3); clause 6(4)(c) retains the existing rule of precedent as respects domestic law; and clause 6(5) sets out the circumstances in which the courts (only the Supreme Court and the High Court of Justiciary) may depart from a relevant European Court judgment. The White Paper had set out the Government’s intention that decisions of the European Court would, under the bill, would have the status of UK Supreme Court judgments and the provisions of clause 6 appear to effect that intention.

While retained EU law will, in strict constitutional terms, simply have the status of ordinary domestic law, it is clear from the provisions of the Withdrawal Bill that there will be certain particularities associated with its status due to the unique role it will play within the legal system by virtue of the nature of the UK’s exit from the EU law system. Thus, it is clear that ‘EU law’, as retained in our constitution, will continue to hold an unusual constitutional status, the exact nature of which will, in due course, no doubt fall for fuller consideration in the domestic courts.

It is not entirely clear whether the rules as to when the Court of Appeal can depart from its own decisions (see Young v Bristol Aeroplane Co. [1944] 1 KB 718) are incorporated into the retention of the precedent rules in clause 6(4)(c). A common sense view might suggest that they are, but the wording of the provision does not appear to clearly cover the situation, as these rules govern what the Court of Appeal is not bound by as well as what it is bound by.

The provisions of clause 6 thus indicate the way in which the Withdrawal Bill squares the achievement of downgrading the case law of the European Court with the preservation of exit-day EU law. The bill clearly envisages, and provides for, scope for divergence in our domestic law on the meaning of (retained) EU law both from that which was hitherto established and that which might fall to be determined within the EU framework as time moves forward. The uniqueness of the constitutional development that this aspect of the Withdrawal Bill represents is striking, and strongly suggests that the complicating inroads into our constitutional structure made by EU law may be of a lasting nature.

Conclusion

Those critical of the Brexit programme have characterised it as an impossible dream. The Withdrawal Bill provides a glimpse of how Brexit might be possible, but also lays bare the delicious complexity of the task at hand. While the Bill may put one more in mind of Sisyphus than Hercules, a herculean effort is what is required from politicians, public servants, and lawyers alike to get Brexit over the line. The clock is ticking