Chapter 2: European Union law and exit day
Repealing the European Communities Act 1972 (ECA)
15.Clause 1 of the Bill states that “The European Communities Act 1972 is repealed on exit day.” For present purposes, the ECA serves three vital functions:
- It provides for directly effective EU law, such as treaty provisions, regulations and decisions, to have effect in the UK without the need for further enactment. Thus, for instance, regulations adopted by the EU (to the extent that they comply with the requirements for direct effect) become effective and enforceable in the UK without the need for domestic transposition.
- It provides for the supremacy in the UK of directly effective EU law. Among other things, this enables UK courts to “disapply” Acts of the UK Parliament and to quash other legislation to the extent of any inconsistency with relevant EU law.
- It provides a legal basis for implementing EU law to the extent that this is necessary. For instance, most EU directives—which do not, in the same way as regulations, decisions and some treaty provisions, have direct effect—have been implemented using the delegated law-making powers conferred by the ECA.
16.It follows that repealing the ECA will have three principal effects:
- Directly effective EU law will no longer have effect in the UK, because the ECA will no longer authorise it to do so. Although, even without repeal of the ECA, directly effective EU law would cease to have effect in the UK upon exit, because the ECA provides for the direct effect of EU law in the UK only to the extent that the UK’s treaty obligations so require; post-exit, no such obligations will persist.
- Directly effective EU law will no longer have primacy over UK law—both because there will be no EU law capable of having primacy and because, in any event, domestic accommodation of primacy will cease upon repeal of the ECA.
- The legal basis upon which UK secondary legislation has been made so as to implement EU directives will be swept away, rendering such secondary legislation invalid.
17.It is self-evident that if these three things were to occur immediately upon the UK’s exit from the EU, the degree of legal chaos that would result would be unmanageable. The remainder of the Bill is therefore devoted to attempting to ameliorate such consequences. It does so by preserving EU-derived domestic legislation and domesticating directly effective EU law, while assigning extremely broad executive powers for the purpose of amending such law. None of these things, however, can happen until “exit day”.
“Exit day”
18.As a consequence of clause 19, many of the Bill’s provisions will enter into force immediately upon enactment; the remainder will enter into force on a date (or dates) appointed by a Minister of the Crown. However, whether or not they are in force, many parts of the Bill cannot be operationally effective until “exit day” arrives. For instance, the repeal of the ECA explicitly occurs “on exit day” (clause 1), while the provisions concerning the saving and domestication of EU and EU-derived law do not operate until “exit day” (clauses 2 to 4).
19.“Exit day” will not necessarily be the day on which the EU treaties cease to apply to the UK—it is due to occur by default, albeit not inevitably, on 29 March 2019 by operation of Article 50 of the Treaty on European Union. For the purpose of the Bill, “‘exit day’ means such day as a Minister of the Crown may by regulations appoint.”13
20.The Bill contains no express provisions that constrain the scope of ministerial discretion to define “exit day” or that otherwise set criteria by which “exit day” is to be determined.14 Indeed, the Bill leaves open the possibility that Ministers may provide through regulations that “exit day” is to be taken to mean one thing for one purpose and something else for another purpose.15 For instance, it may be possible for Ministers to provide that for the purpose of clause 1 (repeal of the ECA) “exit day” is to be taken to be 29 March 2019, but that for the purpose of the clause 7 amendment powers (which lapse, through a sunset clause, two years after “exit day”) “exit day” is to be taken to be some later date. This might be intended to facilitate a transitional period, between the formal disapplication of the EU Treaties to the UK and the establishment of a new, permanent relationship with the EU, necessitating phased domestic legal reforms over a longer period of time.
21.The Bill also does not require that regulations to define “exit day” be subject to any parliamentary scrutiny procedure. We are concerned that the power to define “exit day”—a matter that is pivotal to the operation of the Bill—is unduly broad in its scope and flexibility, and that it is not subject to any parliamentary scrutiny procedure.
Preserving EU law
22.The Government set out in its White Paper, The United Kingdom’s exit from and new partnership with the European Union, that it would seek to “preserve EU law where it stands at the moment before we leave the EU.”16 In our report, we recommended that “the Government should make clear how it intends to preserve and publish the exact text of the ‘snapshot’ of (what was) directly effective EU law if imported by means of a general provision in the ‘Great Repeal Bill’.”17
23.The European Union (Withdrawal) Bill attempts to take such a ‘snapshot’ of EU law by setting out what is termed collectively as “retained EU law.” Clause 2 seeks to preserve EU-derived domestic legislation, clause 3 covers the incorporation of direct EU legislation and clause 4 preserves rights and obligations arising under EU treaties.
24.Clauses 2 to 4 seek to provide a definition of what will count as “retained EU law” to be domesticated by the Bill. However, the Bill’s creation of categories of “retained EU case law” and “retained general principles of EU law” present some difficult technical issues, as a result of the complex forms of interaction provided for between retained EU law and other domestic law. For example, clause 2(1) provides that: “EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.” While the purpose of the provision is to capture domestic secondary legislation made under the ECA for the purpose of implementing EU directives, the definition of “EU-derived domestic legislation” captures a much wider range of measures, including:
- Secondary legislation made under the ECA that implements EU directives or other EU obligations or that otherwise relates to the EU or the EEA
- Provisions of secondary legislation made under other primary legislation that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA
- Provisions in Acts of the UK Parliament that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA
- Provisions in primary and secondary devolved legislation that implement EU directives or other EU obligations or that otherwise relate to the EU or the EEA
25.Most of these categories of domestic legislation to which clause 2 would apply would remain in force even without clause 2. Most obviously, provisions in Acts of Parliament—such as the Equality Act 2010—that implement EU obligations would not be repealed or otherwise rendered inoperative either by withdrawal from the EU or by the repeal of the ECA pursuant to clause 1 of the Bill. Clause 2 therefore appears significantly broader than it needs to be.
26.This has implications when it comes to understanding how the powers to amend retained EU law in clause 7 will work—and, in particular, how far they will extend. Clause 7 creates ministerial powers to amend “retained EU law”, which includes “anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2.”18 However, legislation that would have continued in force with or without clause 2 cannot continue to be or form part of domestic law “by virtue of” that provision. Thus, for instance, primary legislation such as the Equality Act 2010, parts of which implement EU obligations, does not constitute “retained EU law” under clause 6(7), even though it constitutes “EU-derived domestic legislation” under clause 2, meaning that it is therefore invulnerable to the exercise of clause 7 powers of amendment. We recommend that the limited scope of clause 7 in this respect be stated expressly on the face of the Bill to avoid uncertainty.
27.Additionally, many of the rights derived from EU treaties to be transferred by clause 4 presuppose membership of the EU. This is so, for instance, with rights that relate to the operation of the single market. Even if clause 4 technically makes such rights part of domestic law, it is difficult to see what meaningful effect they could have if they no longer reflected reciprocal treaty commitments between the UK and the other EU Member States. Clause 4 also appears to domesticate the directly effective provisions of EU directives irrespective of whether the directive has been implemented in domestic law by means of EU-derived legislation that will (where necessary) be saved by clause 2. This gives rise to the question whether the operation of clauses 2 and 4 will result in two versions of some EU norms co-existing within the domestic legal system, i.e. the version contained in EU-derived domestic legislation and the version domesticated by clause 4. Clause 4 may be intended to operate only upon directly effective provisions in directives to the extent that such provisions have not already been domesticated through the medium of EU-derived domestic legislation, however this is not clear from clause 4 as drafted.
28.It is also unclear as to the status of retained EU law post-exit; whether it is primary legislation, secondary legislation, or some new taxonomical form. Clause 2 suggests that primary legislation that implements EU obligations will remain primary legislation, while secondary legislation that implements such obligations will remain secondary legislation. However, the direct EU legislation and directly effective EU law domesticated by clauses 3 and 4 effectively have no equivalent status in UK law and the Bill makes no provision for them. The Bill requires that retained EU law be considered primary legislation for the purposes of the Human Rights Act 1998,19 but does not set out how it should be considered otherwise.
29.Professor Paul Craig concluded there was “an important ambiguity that lies at the heart of the present schema, which will render the law post Brexit difficult to understand, even for the trained lawyer” not least because “the legal status of the retained law is not entirely clear.”20 We recommend that this matter should be addressed on the face of the Bill to avoid uncertainty.
30.Schedule 5 to the Bill requires the Queen’s printer (within the National Archives) to publish the EU regulations, decisions, tertiary legislation and relevant treaties that apply before exit day. This is essential—as the body of law that applies after exit day must be clear and accessible—but it is not straightforward. The amount of retained EU law will be considerable and its contents will be changing up until exit day.
31.It is imperative, in the interests of legal certainty, that there is maximum clarity as to what counts as retained EU law. That clarity must be available immediately upon exit, even though the body of EU law on which retained EU law will be based is subject to change until immediately before exit. We will examine the proposed transfer of EU law and of the rights derived from EU treaties, and the practicalities of publishing a copy of the retained EU law, in our forthcoming inquiry.
Primacy of EU law
32.We noted in our report that “following the repeal of the ECA, secondary legislation made under section 2(2) of the ECA will no longer be afforded primacy over incompatible UK law (unless the ‘Great Repeal Bill’ seeks to provide otherwise)” and that this would have “the potential to unsettle the clarity” of areas of the law.21 The European Union (Withdrawal) Bill sets out at clause 5 that the principle of the supremacy of EU law will no longer apply to any Act or rule passed on or after exit day. However, the supremacy principle will continue to apply in relation to UK legislation passed before “exit day”.
33.We will consider the drafting and implications of clause 5 in detail in our forthcoming inquiry. For the time being, we observe that it is ambiguous and risks creating considerable uncertainty. As currently drafted, clause 5 provides that “the principle of the supremacy of EU law” will continue to apply to certain UK laws post-exit. It is unclear how and in what way “the principle of the supremacy of EU law” can continue to apply in the UK at a point in time—i.e. post-exit—when “EU law” does not apply. It is true that “retained EU law”, as defined by the Bill, will continue to apply, but that category is all-embracing, and not all of those laws would, in their pre-exit incarnations, have benefitted from the supremacy principle. For instance, while, pre-exit, directly effective treaty provisions and regulations benefit from the supremacy principle, thereby enjoying priority over incompatible domestic law, the same is not true of domestic secondary legislation that gives effect in national law to directives.
34.Our initial view is that clause 5 is insufficiently clear in setting out the aspects of retained EU law to which the supremacy principle will continue to apply and how it will continue to apply. This risks creating confusion as to the effects of the already highly complex legal regime prescribed by the Bill. We will examine the application of the supremacy principle in more detail in our forthcoming inquiry.
14 The Bill does not impose any duty on Ministers to ever prescribe “exit day”.
16 HM Government, The United Kingdom’s exit from and new partnership with the European Union, p.10
17 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 62
18 Clause 6(7)
21 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 59