European Union (Withdrawal) Bill 2017 - first thoughts

European Union (Withdrawal) Bill 2017 - first draft, first thoughts

Yesterday, some three months after the release of the preceding White Paper, the Repeal Bill was published. At a uniquely exciting time in British politics it is fitting that The Quill Project flies across the Atlantic to model one of the most keenly awaited pieces of legislation in recent history. Originally declared to be the “Great Repeal Bill”, the Bill lost its greatness following the fascinating decimation of Theresa May’s majority in the snap election. Though it is short - it contains just 19 clauses over 14 pages, with the rest being unwieldy schedules¹ - its ambition is still immense: it is this negotiated text which will, ultimately, enact the turning away of the UK from the EU.

The central provisions of the Bill aim to do three things:

1. Repeal the European Communities Act 1972 (“ECA 1972”; clause 1)

2. Retain EU law following Brexit day (clauses 2-4)

3. Provide for the later modification, or “correction”, of retained EU law (clause 7)

The Conservative Party says that the introduction of the Bill will be “giving Britain the certainty it needs as we leave the EU”. This blog post aims to give an overview of the Bill's provisions, and to ask an important question: does the Bill provide the certainty promised by the Conservatives, or raise more constitutional issues than it solves?

Repealing the European Communities Act 1972

The first thing to note about clause 1 is that “exit date” is never defined. The clarification offered by clause 14(1) does not make mention of the “Brexit Day” envisaged by the two-year time limit determined by the operation of Article 50, 29th March 2019, absent of any (unlikely) agreement to alter this time period. This in-built flexibility is a sensible addition to the Bill; it places power with Parliament enact irreversibly legal changes at a time appropriate for the UK, even if the two-year timeframe has lapsed. Ardently optimistic Remainers might hope that it could also mean that this day never comes at all.

This potential lag-time raises a secondary issue: can the ECA 1972 continue to have any effect once the UK leaves the EU? If the European Treaties no longer apply to the UK post-Brexit, withdrawal - deal or no deal - would render the ECA 1972 without any legal bite. The repeal of the ECA 1972, by this logic, is therefore but a politics-friendly formality.

Retaining EU Law

Clauses 2-5 are relatively simply explained.

Clause 2 preserves “EU-derived domestic legislation”, ensuring it remains in force even when the ECA 1972 - the current legal basis for such legislation - is repealed.

Clause 3 converts “direct EU legislation”, such as EU regulations and decisions that have direct effect in the UK by reason of it being an EU Member State, into domestic law.

Clause 4 makes up the difference between clauses 2 and 3, by noting provisions of EU law that currently have effect in the UK due to the operation of s.2(1) ECA 1972 which are not already covered by clause 3. These include directly effective provisions of the EU Treaties and associated rights, including provisions under the TFEU for the “four freedoms” of goods, capital, services, and labour. However, the absence of Member State-EU reciprocity raises questions as to how Treaty rights will be protected and upheld.

Clause 5 addresses directly the legal status of retained EU law: Clause 5(1) states that the principle of EU supremacy over UK law will no longer apply to any rules passed on Brexit Day or thereafter. However, clause 5(2) adds that the principle does apply when questions of interpretation, disapplication, or disposal of pre-Brexit enactments are raised post-Brexit. Clause 5(3) then extends this to amendments of pre-Brexit enactments, provided that the “application of the principle is consistent with the intention of the modification”. The cumulative effect of clause 5 is that EU supremacy will be retained for pre-Brexit domestic legislation, but not post-Brexit legislation, and pre-Brexit domestic Acts of Parliament will be disapplied in event of a conflict with retained EU law. The clause does not address the treatment of different types of EU law: the supremacy principle at present applies to directly effective EU laws, but not to secondary legislation enacted to give domestic effect to indirectly effective EU law under the ECA 1972 - it is unclear whether this distinction remains pertinent to the application of clause 5 of this Bill.

EU Charter of Fundamental Rights

Clause 5(4) states explicitly that the Charter will not be part of domestic law after Brexit Day. The clause has provoked widespread criticism among commentators and politicians, but its significance should not be overstated. Firstly, it should be noted that the Charter is different to the European Convention of Human Rights (ECHR), which is seemingly unaffected by the Bill. However, the Charter contains rights which generally go beyond those of the ECHR, and includes important protections in evolving areas such as social and workers’ rights, privacy protections, and new grounds of discrimination. The exclusion of the Charter from domestic law is also qualified by clause 5(5), which states that rights accrued independent of the Charter will still be protected by the incorporation of EU law into domestic law under clauses 5(1)-(3). This caveat is welcome, but is then curtailed by the explanations provided in schedule 1, paragraph (3): a failure to comply with general principles of EU law in domestic law will not give rise to a cause of action post-Brexit and, similarly, incompatibility with general principles cannot be used to quash offending administrative or legislative action.

The Charter would not be easy to integrate into existing legal regimes: it application is only to areas where EU law is applied and developed, making it largely an irrelevance post-Brexit. Its relationship with the Human Rights Act 1998, expressly protected by clause 8(3)(d) of the Bill, would be another complication to endure. This being said, the abandonment of the EU Charter will nonetheless contribute to the uncertainty regarding the protection of rights in the UK and of their interpretation in UK courts, especially against the backdrop of recent discussions about a British Bill of Rights and the removal of European jurisprudential influence on British legal institutions.

The Court of Justice of the European Union (CJEU)

Clause 6 provides that post-Brexit CJEU case law will not bind Britain, but that the UK must decide cases in accordance to the relevant pre-Brexit CJEU decisions. The Supreme Court, though, is given leave to depart even from pre-Brexit CJEU jurisprudence when the same tests applied when deciding to depart from domestic case law are satisfied. There is no restriction on the courts from considering CJEU case law as they wish.

There are two key deficiencies with these clauses 5(4), 5(5) and clause 6. The first is that there is no provision to ensure or even encourage that UK rights protection keep pace with EU rights after Brexit. This could lead to domestically-upheld rights lagging behind international standards in areas which require a degree of cooperation and reciprocity, such as consumer rights, equality protections and environmental standards.

The second issues is contained within the Explanatory Notes. A passage elaborating on the powers conferred by clause 7, but referring to the removal of reciprocal arrangements between states including the reciprocal rights of citizens, reads: “The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals”. This power to remove EU citizens' rights in the event of leaving the EU without an exit deal serves to reinforce the widespread, unfavourable perception that the government wishes to reduce rights currently enjoyed by EU nationals based in Britain even with the best of deals being struck. It is hard to see how the potential for unabashed erosion of EU citizens' rights can coexist with the statement on the Bill's contents page that it is compatible with the ECHR.

“Correcting” Retained EU Law

Clause 7 - and schedule 7 - confers upon Ministers the power to amend, repeal, and replace retained EU law by making administrative regulations. Corresponding powers are conferred on devolved administrations by clause 10 and schedule 2. These so-called “Henry VIII powers”² extend to, as clause 7(4) states, “any provision that could be made by an Act of Parliament”, with clauses 8(2) and 9(2) providing equivalent provision in respect of the powers described in clauses 8(1) and 9(1). While on the surface, this looks alarmingly like Ministers can legislate for any purpose, these powers are restricted to legislating within the purpose of clauses 7(1), 8(1), and 9(1) themselves. This provides only the smallest comfort though, as the scope of these powers is limited by unfathomably loose wording: the definitions of a “failure of retained EU law to operate effectively” or “any other deficiency” is left open for broad interpretation, and the inexhaustive list of examples given by clause 7(2) “include (but are not limited to)” is unhelpfully diverse. To add to the confusion, it is also unclear whether these powers extend to the many EU instruments which implement international treaties and, following from this, whether Ministerial corrections will expose the UK to international responsibility.

The sweeping powers available to Ministers through these Henry VIII clauses is cause for concern. As well as substance, the timing of the use of these powers could wreak havoc: without effective oversight or accountability, the use of these powers very late in negotiations on significant, far-reaching policy changes may cross the line as being fundamentally undemocratic.

These exceptionally wide powers are tamed only by a “sunset clause”, clause 7(7), which imposes a two-year time limit on their exercise. Given that two years is proving to be uncomfortably tight for the Brexit negotiations themselves, one must ask whether two years will be enough time to tie up legislative loose ends domestically. It may take time for legislation to present problems which need fixing outside the context of the UK-EU relationship. The two-year timeframe may also hinder adequate scrutiny of the changes in Parliament. Suggestions made by the House of Lords Constitution Committee in an attempt to address the potential lack of scrutiny in the face of such wide-ranging issues presented by clause 7(1) have not been reflected in the Bill. There is no apparent effective accountability mechanism attached to the these delegated powers but for the attached sunset clauses, which would arguably encourage sloppy legislative practice and endless long-term problems as a result of cutting corners haphazardly.

The sunset clauses themselves are not immune to circumvention by this Bill by the non-definition of “exit day”. Given that the sunset clause time limit begins to run whenever a Ministerial Order declaims “exit day” to be, it may be that the extensive powers conferred on Ministers by the Henry VIII clauses in the Bill would in fact be prolonged if “exit day” falls after 29th March 2019. Equally, if “exit day” were to fall only at the end of a long transitional period, for example, the efficacy of the sunset clause to work as a check on Ministerial power will be limited.

Devolution

EU law currently limits the powers of devolved administrations, and it was a promise given by the Leave Campaign and successive Conservative leaders that more power would be entrusted to the devolved administrations upon leaving the EU. Leaving the EU would, in itself, provide this by default - restrictions on devolved powers in areas affected by EU rules and regulations would instantly be lifted. However, clause 11 reverses this presumption: the ability to modify retained EU law will instead fall outside of devolved competence, even in subject areas that are devolved. A joint statement issued by Nicola Sturgeon and Carwyn Jones, First Ministers of Scotland and Wales respectively, describes this provision as “an attack on the founding principles of devolution” which “imposes a new set of restrictions”. While the Explanatory Notes accompanying the Bill soften the blow a little by suggesting that the the UK Government’s intention is to work with the devolved administrations to identify areas of retained EU law which warrants a separatist approach and release them to the administrations by the making of Orders in Council - it is not a total restriction on the granting of further devolved power - the double standard of UK liberation against devolved limitation is hard to ignore.

A linguistically-minded constitutional lawyer might argue that legal constraint by EU law is merely being exchanged for retained EU law, and that there is no substantive difference which would warrant anger or concern from devolved institutions, but this is only true insofar as retained EU law remains identical to the original EU law. As soon as changes are made, as is inevitable, the two bodies of law are different. While retaining power over devolved competencies is Whitehall’s legal prerogative, as the Sewel Convention “normally” applies when the UK Parliament legislates so as to change devolved competence and this might not be considered a “normal” situation, it would be politically catastrophic to withhold these EU powers when they had previously been promised to be returned to the devolved institutions.

A refusal to consent to the Bill’s passing through Parliament, as threatened by the aforementioned joint statement from Scotland and Wales, risks a different kind of treachery for the devolved administrations: a Brexit without the Withdrawal Bill in place to regulate the effects of the Brexit negotiations, deal or no deal, would likely result in inconceivable, irreparable constitutional and legal chaos. It is not in any part of the UK’s interests to go into this battle: devolution must surely be taken into better consideration upon further readings of this Bill.

Conclusions

It is rare for any Bill to get both the “what” and the “how” of its aims right on the first draft, and it is for this reason that we have a robust Parliamentary process through which Bills get amended significantly - as will be reflected on the Quill platform in time to come. However, it is remarkable that this Bill appears to have misjudged so many key issues.

Its provisions generate an uncertainty about the role of EU law after withdrawal, and whether protections supposedly preserved post-withdrawal will retain their legal bite. The broadness of the language used in providing for Ministers’ powers to amend EU legislation is dangerously unclear, providing for unprecedentedly wide powers, and the sunset clauses used as to counterbalance this danger are subject to circumvention. It is interesting that all major parties, as well as many politicians, have described this Bill as a “power-grab” for Whitehall: the drafters have taken an insensitive approach to devolution, and the Bill does not ensure the effective involvement of the devolved administrations. The continual failure of successive governments to address this contentious issue, one that was magnified by the June 2016 Referendum, is damaging for the Union. The Bill lacks clear enforcement mechanisms and, without adequate remedies, key rights could become unenforceable. If passed in its current state, lawyers would be free to challenge any and all applications of “corrected” EU law in UK courts. While this may provide opportunity to avoid some of the problems caused by corner-cutting, but it threatens the integrity of the rule of law and the trust society is supposed to hold in legislative and legal institutions.

It is for these reasons that Parliament must assert itself effectively during the drafting process. David Davis insisted that the Bill would provide “maximum certainty, continuity and control”, but the Bill demonstrates a distinct lack of these qualities: with over 12,000 EU regulations in force in the UK, the meeting of trite political rhetoric and the cold legislative reality of Brexit may prove to be a rude awakening for Britain. And with the clock ticking, the pressure is on to get this Bill right so that the rest of Brexit can be as painless as possible.

G.E.C.M.

Useful Links

Repeal Bill: https://www.publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf

Bill Tracking Page: http://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html

White Paper: https://www.gov.uk/government/publications/the-repeal-bill-white-paper

Memorandum for the Delegates Powers and Regulatory Reform Committee: https://www.publications.parliament.uk/pa/bills/cbill/2017-2019/0005/delegated%20powers%20memorandum%20for%20European%20Union%20(Withdrawal)%20Bill.pdf

House of Lords Constitution Committee’s Report “‘The Great Repeal Bill’ and delegated powers”: https://www.publications.parliament.uk/pa/ld201617/ldselect/ldconst/123/123.pdf