On First Looking Into The Brexit Bill

By David Hart

David Hart QC takes a look at the Brexit Bill

The Great Repeal Bill has shrunk more prosaically into the EUWB, but its task is technically arduous. The easy bit is clause 1: the European Communities Act 1972 is repealed on (Br)exit day. Job done? No. Job hardly started.

European Union (Withdrawal) Bill and Explanatory Notes

There follows 61 pages of Bill designed to take a snapshot of EU law at exit day, and make it all UK law, for the moment. A few exceptions to this, as we will see, but that is the scheme. It adheres to the plan set out in the March 2017 White Paper: import as a job lot, then amend or delete at leisure.

Importing EU law

The main heavy lifting in this “bringing Euro-law home” Bill is done as follows

• EU-derived domestic legislation, i.e. primary and secondary legislation passed to implement EU law in the UK, should continue to have effect after exit day. The EUWB gives the authority for this which the ECA 1972 had done up to now.
• directly effective EU legislation, i.e. EU regulations and EU decisions etc, will also continue to form part of domestic law.
• rights, powers, liabilities and obligations etc flowing from directly effective EU Treaty provisions will continue to be recognised and enforceable under domestic law even after Brexit. Cl.4 needs a little bit of unpacking. Things like citizenship rights, free movement of goods, equal pay, state aid and abuse of a dominant position get rolled over by it into domestic law: see the Explanatory Notes. But not everything in the Treaties would arrive into domestic law under cl.4. So take Art.191 TFEU on the environment, containing the precautionary and polluter-must-pay principles. This would only arrive in UK law indirectly, if it is embedded in a Directive or in EU law caselaw such as the Waddenzee cockle fishers case.

Interpreting EU law

Cll.5 and 6 grapple with post-Brexit interpretation of this EU law. EU law ceases to be supreme but only for post-Brexit measures. The courts generally are not bound by post-Brexit CJEU decisions, and cannot refer cases to the CJEU. They must decide issues about retained EU law by reference to EU principles frozen at exit day. The Supreme Court is not bound by retained EU caselaw, but must apply its own practice about departing from SC decisions to departing from CJEU decisions: cl.6.

As many have pointed out, this is fine for the moment, but the problems will emerge as the CJEU and domestic courts diverge over the years even though the underlying laws remain the same or very similar. And in which courts will European businesses decide to have their battles fought?

The most controversial bit of cl.5 (cl.5(4)) is the statement that the EU Charter “is not part of domestic law on or after exit day”. The Explanatory Notes (p.27) give a very partial account of why this is to be: unnecessary, because the Charter was only a codification of existing rights, and those rights have made it into EU law anyway. There is in fact a much broader debate about whether the Charter is a good or bad thing (see Marina Wheeler QC here), and it is already plain that this is going to be a political pinch-point. One wonders whether it might not have been easier simply to roll the Charter over, duck the argument for the moment, and fight the battles later once the EUWB is law. Complications will also arise when other bits of retained EU law are influenced by the Charter, which won’t be there any more.

Mending EU law per Henry VIII

Cl.7 has also engendered widespread controversy. It is presented as a modest little number allowing the Government to use secondary legislation to tweak UK laws if they think they would not work properly after Brexit. But note its breadth:

“(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate —
(a) any failure of retained EU law to operate effectively, or
(b) any other deficiency in retained EU law,
arising from the withdrawal of the United Kingdom from the EU”.

Cl 7(2) sets out a wide but non-exhaustive list of deficiencies which can be remedied. Obvious ones are where someone has to send something to the European Commission before he can get a permit.

But there will be a dizzying array of things which the Minister would like to do via statutory instrument, and which he can say is something to do with a Brexit complication. And he can create entirely new public bodies to help him in this job: cl.7(5), which can themselves come up with statutory instruments. For full discussion on this see Professor Mark Elliott’s post here. So it really is a Henry VIII clause of some concern.

On any view, there has to be some way of mending the 10,000 or so instruments which will become directly part of domestic law, via this Bill, and which do tiresome things like referring to European institutions.

But we can expect sustained efforts in Parliament to inject rather more than the pretty ineffective general system of parliamentary scrutiny into this unprecedented process. The only apparent restraint on this is that this power does not extend beyond 2 years after exit day: c.7(7).

International obligations

At the moment, we get a lot of our law third-hand. An international treaty, say on transhipment of waste, sets some rules. The EU adopts and adapts those rules, and makes a regulation about it. We then make a regulation setting out the domestic arrangements for enforcement of that EU regulation.

Cl.8 authorises ministers to make regulations to prevent or remedy any breach arising out of the UK’s withdrawal from EU of the UK’s international obligations. So, on my example, the minister could disavow the EU regulation, and simply incorporate directly the international obligation by regulation.

Euro-claims

Here is an area to watch, and one which does not seem to have surfaced in the first flood of comments on the Bill. In many areas of litigation, a claim relying on a provision of EU law may have more teeth than the equivalent domestic cause of action. Tucked away in Schedule 1, para.3(1) abolishes rights of action based upon a failure to comply with any of the general principles of EU law, and 3(2) does likewise to EU challenges to other rules of law. Para.4 says that there is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich, namely the right to sue a public authority in damages for an egregious breach of its EU obligations.

The only tempering of this is for actions begun but not finally decided by a court before exit day: even further tucked away in Schedule 8, para.27.

Note that this scheme ignores when the breach of EU law might have occurred, and hence has obvious retrospective effect. Let us assume that government has been egregiously in breach of a Directive for some years, both before and after exit day. Government escapes any liability under the Francovich principle for past and future breaches, unless the litigant has issued his claim before exit day. Cue flood of protective proceedings issued as exit day looms.

This seems to be a blatant way of Government seeking to avoid responsibilities for past breaches which is nothing to do with the underlying purpose of the Bill. It is to be hoped that a fairer balance between past and future grounds for complaint emerges during the legislative process.

Conclusion

These are very much first thoughts, but, given that Government has picked two major fights in the drafting of this Bill, in getting rid of the Charter and in gunning for a Henry VIII clause broader than that monarch’s stomach, I am not being particularly prophetic in seeing that debates in both Houses will be long-running. It is certainly bound to be more controversial in the Commons than the March 2017 Article 50 Notification Act here. And the longer the debates go on, the less time there will be between enactment and the Article 50 deadline of 29 March 2019.

This article was first published on the 1 Crown Office Row Human Rights blog.