6UK domestic legislation
The European Union (Withdrawal) Bill
Disapplication of UK primary legislation
143.The European Union (Withdrawal) Bill (“the Withdrawal Bill”) currently provides for the CJEU to lose its binding jurisdiction on exit day, after which UK courts will no longer be able to make references to it.138 However, UK courts will be able to:
- give precedence to “EU retained law” over pre-exit legislation, possibly resulting in disapplication of pre-exit UK primary legislation;139 and
- take into account pre-exit judgments of the CJEU if they consider it appropriate to do so (much as they can do now with any relevant foreign judgement). However, there is a serious concern that the guidance given to judges is inadequate and therefore creates uncertainty.140
144.“Retained EU law” is very broadly defined without clear parameters.141 This creates uncertainty as to the scope of the courts to disapply pre-exit primary legislation, exacerbated by uncertainty as to the role post-exit of CJEU jurisprudence.
145.We have been in correspondence with the Prime Minister on the question of the disapplication of pre-exit UK primary legislation.142 Essentially, we have expressed concern at the legal uncertainty that may be caused by allowing courts to disapply primary legislation, as well as the constitutional propriety of such an arrangement. We also drew the issue to the attention of the Secretary of State for Exiting the EU who indicated that there would be a further written response.143
Implementing the Withdrawal Agreement in UK law
146.Clause 9 of the Withdrawal Bill gives, subject to conditions, a wide-ranging power to implement any withdrawal agreement including amendment of the Bill itself. At the same time, the Government has undertaken to introduce a Withdrawal and Implementation Bill.144 In relation to the latter, the DEXEU Press Release simply states that “The Bill is expected to cover the contents of the Withdrawal Agreement, including issues such as an agreement on citizens’ rights, any financial settlement and the details of an implementation period agreed between both sides.”145
Entrenchment of citizens’ rights
147.The Joint Report146 states that UK domestic legislation will be enacted so that citizens will be able “to rely directly on their rights” as part of a framework which ensures ‘that inconsistent or incompatible rules and provisions will be disapplied”. It adds that, once the Bill to incorporate citizens’ rights into UK law has been adopted, “the provisions of the citizens’ rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future”.
148.This now appears to be reflected in Article 4 of the draft Withdrawal Agreement147 proposed by the Commission. Though there is no specific reference to “express repeal”, arguably it must be tacitly understood that Parliament retains sovereignty to expressly repeal any UK primary legislation. Entitled “Methods and principles relating to the effect, the implementation and the application of this Agreement”, Article 4 provides:
1. Where this Agreement provides for the application of Union law in the United Kingdom it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and the Member States.
In particular Union citizens and United Kingdom nationals should be able to rely directly on the provisions contained or referred to in Part 2 [Citizens’ Rights]. Any provisions inconsistent or incompatible with that Part shall be disapplied.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic legislation.
149.It is orthodox UK constitutional law that, as a matter of UK Parliamentary sovereignty, no Parliament can bind its successor.148 It is accepted that the UK Parliament can always expressly repeal an existing statute and that normally an earlier statute can be impliedly repealed by a later inconsistent statute. However, the question is whether and, if so, how can the UK Parliament legislate for citizens’ rights provisions in the Withdrawal and Implementation Bill with the effect of protecting them from implied repeal.
150.The issue has attracted considerable dispute and legal comment.149 There is a judicial view, first expressed by Laws LJ in Thoburn,150 with some support in the Supreme Court in the Jackson,151 HS2,152 and Miller153 cases, that certain UK statutes including the European Communities Act 1972 (ECA, the statute being considered) have the status of “constitutional statutes”. As such, these can only be expressly repealed by Parliament. Laws LJ considered that other statutes such as the Human Rights Act and Devolution statutes would fall within this category.
151.However, Laws LJ recognised that the constitutional status of the ECA could not be accounted for by Parliament’s having precluded its implied repeal because (as he put it) Parliament “cannot stipulate against implied repeal”. This means it is unclear whether such status and protection against implied repeal is a function of “Parliament’s legislative will or the operation of the UK common law constitution”154 and so dependent on recognition as such by the courts.
152.We asked the Secretary of State for Exiting the European Union how EU citizens’ rights could be entrenched against implied repeal. He responded:
The withdrawal and implementation Bill will be drafted that way. I am told by the draftsmen that it can be done. It cannot be overtaken by implied repeal. It can be—were Parliament so to choose—overruled explicitly, but not by implied repeal.155
The implementation period
153.Currently, the jurisdiction of the CJEU and the obligation of the UK courts to follow the case law of the Court is achieved through sections 2 and 3 of the European Communities Act 1972.
154.Section 2(1) means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically “without further enactment” incorporated and binding in national law without the need for a further Act of Parliament. The domestic courts are obliged to give full effect to section 2(1), in the light of the case law of the Court of Justice (section 3(1)).
155.The Secretary of State for Exiting the European Union was asked by the Exiting the EU Committee in January156 whether the Withdrawal and Implementation Bill will reapply CJEU jurisdiction for the implementation period. This was on the assumption that jurisdiction would have been disapplied from 29 March by the repeal of the European Communities Act 1972 by the Withdrawal Bill. He said: “It must have that effect. It will be contingent on the legal basis that we agree, at the end of the day”.
156.We took this up with the Parliamentary Under-Secretary of State for Exiting the EU (Robin Walker), asking him:
- how the CJEU could have exclusive jurisdiction in the UK once the European Union (Withdrawal) Bill had repealed the ECA; and
- was it the intention to extend section 3 of the ECA beyond exit day of 29 March 2019?157
157.He responded that he could not speculate on the exact detail of the Bill before publishing a first draft. But he was clear that the Withdrawal and Implementation Bill would be the basis for giving effect to the implementation period in UK law.158
158.The question of how to give direct effect and supremacy to EU law during the transition period raises the same question of whether this will simply be achieved by reproducing similar provisions to section 2 of the European Communities Act 1972 in the Withdrawal and Implementation Bill.
Our conclusions
159.As we have already indicated in correspondence with the Prime Minister, we do not consider that the UK domestic courts should be given a power after the UK’s exit from the EU to disapply pre-exit primary legislation. This was a requirement of the UK’s membership of the EU. To allow such a power to persist after the withdrawal of the United Kingdom from the EU would be inconsistent with the doctrine of Parliamentary sovereignty and therefore constitutionally improper.
160.The continuation of this power is even more questionable in the light of the uncertainty as to its scope in the Withdrawal Bill as currently drafted. Our concerns have not been alleviated by the Prime Minister’s response and we look forward to the further response from the Government on this issue.
161.We ask for an explanation from the Secretary of State for Exiting the EU as to how it is proposed to entrench in UK law the citizens’ rights provisions of the Withdrawal Agreement and his assessment of how robust that will be if challenged.
162.We ask the Government to set out its legislative plans for reapplying CJEU jurisdiction during the transition period. In this respect, there appears to be no need for both clause 9 of the current European Union (Withdrawal) Bill and likely provisions of the forthcoming Withdrawal and Implementation Bill, and we ask the Government to explain its approach to these two provisions.
138 The European Union (Withdrawal) Bill, as introduced in the House of Lords on 18 January 2018, currently at Committee Stage in the Lords. Clause 1 repeals the European Communities Act 1972.
139 Clause 5(2) of the Bill
140 See the 9th Report Session 2017–19 of the House of Lords Constitution Select Committee on the European Union(withdrawal) Bill, Chapter 7
141 In particular in clauses 2 (Saving for EU-derived domestic legislation) and clause 4 (Saving for rights etc. under section 2(1) of the ECA).
142 Letters between the Chairman of the European Scrutiny Committee and the Prime Minister of 19 December 2017, 9 January 2018, and 22 February 2018.
144 DEXEU Press Release “ New Bill to implement the Withdrawal Agreement”, 13 November 2017
145 DEXEU Press Release “ New Bill to implement the Withdrawal Agreement”, 13 November 2017
146 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, TF50 (2017) 19 – Commission to EU 27, 8 December 2017
147 European Commission Draft Withdrawal Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community, 28 February 2018
148 There are some constitutional theories, such as the doctrine of “manner and form” otherwise known as the “reconstitution of Parliament” which argue that if Parliament can do anything it can “redesign itself either in general or a particular purpose” (as discussed in R (Jackson v Attorney General). (2006) According to this theory, Parliament could require, for example, a referendum of the people or certain voting thresholds in the Commons and Lords before changing certain laws.
149 See for example, “The Brexit agreement and citizens’ rights: Can Parliament deliver what the Government has promised? – Public Law for Everyone”, by Professor Mark Elliot, 11 December 2017; “Parliamentary Sovereignty and the Implementation of the EU Withdrawal Agreement” views expressed by Professor Mikołaj Barczentewicz on Twitter.
150 Thoburn and Sunderland City Council, [2002] EWHC, 18 February 2018
151 Jackson and Others v HM Attorney General {2005] UKHL 56, 13 October 2005
152 R ( on the application of HS2) v the Secretary of State for Transport and another, [2013] EWHC 481 22 January 2014
153 R (on the application of Miller) v Secretary of State for Exiting the EU [2017]UKSC5, 24 January 2017
154 The Brexit agreement and citizens’ rights: Can Parliament deliver what the Government has promised? – Public Law for Everyone”, by Professor Mark Elliot, 11 December 2017
Published: 20 March 2018