Chapter 4: Status of retained EU law
Introduction
39.Whether a law counts as primary or secondary legislation is of fundamental importance in the UK legal system. Primary legislation in the form of Acts of Parliament is the product of a legislature that is sovereign, in the sense that it has legally unlimited powers. In contrast, secondary legislation is, by definition, made under limited powers that are capable of being unlawfully exceeded. This distinction has important consequences when considering the status of retained EU law under this Bill.
Categories of retained EU law
40.Broadly speaking, the Bill creates two types of “retained EU law”. The first type is “EU-derived domestic legislation” under clause 2. As we explain in Chapter 3, this category consists of domestic legislation that already exists. It is therefore already either domestic primary legislation or domestic secondary legislation; and under the Bill, it will have the same status post-exit as it had pre-exit.28
41.EU-derived domestic legislation under clause 2 can be distinguished from “retained direct EU legislation” that is domesticated by clause 3 and other directly effective provisions of EU law that are domesticated by clause 4. (We refer to the law domesticated by clauses 3 and 4 collectively as “retained direct EU law”.) The crucial difference between EU-derived domestic legislation and retained direct EU law is that whereas the former already has a particular domestic status, the latter does not. Therefore, while the legal status of EU-derived domestic legislation is clear post-exit, the same is not true of retained direct EU law.
42.The Bill is silent as to the domestic legal status of retained direct EU law. The Government told us that:
“Legislation which is converted into domestic law by clause 329 will … form part of a unique and new category of domestic law … Retained direct EU legislation will operate in a different way to both primary and secondary legislation, was not made by UK legislators, and will have a unique status within the domestic hierarchy. It was not considered appropriate, therefore, to assign a single status to retained direct EU legislation for all purposes. The Bill instead sets out the interpretative rules that apply to retained direct EU legislation and sets out in a number of other places what status converted law will have for certain specified purposes.”30
43.Giving retained direct EU law a “unique status within the domestic hierarchy” arises only because of the Bill’s present failure to assign it any recognisable legal status. The Government appears to suggest that because directly effective EU law currently stands outside the normal domestic hierarchy of primary and secondary legislation, the same must be true of retained direct EU law post-exit.
44.Retained direct EU law will be domestic law. There is no reason why Parliament cannot or should not assign to retained direct EU law a recognisable domestic legal status. The fact that retained EU law began life as something other than domestic law does not prevent Parliament from assigning it a domestic legal status once it becomes domestic law. Nor does the fact that retained direct EU law originated outside the domestic legal system provide any good reason for neglecting to assign it a domestic legal status once it is recognised as domestic law.
A single legal status for retained direct EU law
45.It is essential that the Bill mitigates the legal complexities that will arise from transferring EU law into UK law. For the purposes of clarity, continuity and certainty it is imperative that all retained direct EU law has the same legal status, whatever that legal status might be.
46.Treating all retained direct EU law as primary legislation better accords with the status that directly effective EU law currently has. The status of directly effective EU law is much more closely analogous to domestic primary than to domestic secondary legislation. The Bill’s aim of securing legal continuity and certainty is more likely to be achieved if it assigns to retained direct EU law a domestic legal status that accords to the legal status that directly effective EU law currently has.
47.If retained direct EU law is treated as domestic primary legislation, this will mean that it is treated in the same way as directly effective EU law currently is for Human Rights Act (HRA) purposes. At present, directly effective EU law cannot be struck down by a UK court on the ground that it conflicts with the rights under the European Convention on Human Rights (ECHR) that are protected by the HRA. If retained direct EU law is regarded as domestic primary legislation, then it will be in the same position for HRA purposes as directly effective EU law at present.
48.Treating retained direct EU law as primary legislation for all—including HRA—purposes is not without constitutional costs. For example, it means that retained direct EU law cannot be struck down on ECHR grounds, the significance of which will be compounded if the EU Charter of Fundamental Rights (which we consider separately in Chapter 6) is excised from domestic law upon exit, as is currently provided for by the Bill. However, the fact that retained direct EU law will be immune from strike-down under the HRA if it is regarded as primary legislation does not mean that it cannot be challenged under the HRA. The courts’ power (indeed, obligation) under the HRA to interpret legislation compatibly with relevant ECHR rights as far as is possible will apply to retained direct EU law, as will the power to issue a declaration of incompatibility if it is impossible to read legislation compatibly with a relevant right. The ECHR-compatibility of retained direct EU law would also be subject to possible challenge before the European Court of Human Rights in Strasbourg. In the light of the fact that the HRA will, in those ways, apply to retained direct EU law even if it is treated as primary legislation, we conclude that the benefits—in terms of clarity, continuity and certainty—of treating all retained direct EU law as primary legislation outweigh any disadvantages in this regard.
49.We also recognise that treating retained direct EU law as primary legislation will render it immune from judicial review on non-HRA grounds. This means, for instance, that retained direct EU law would not be subject to challenge on the ground that it is incompatible with common law principles of procedural fairness or with common law constitutional rights. However, even though courts cannot strike down primary legislation—and would therefore be unable to strike down retained direct EU law if it were given the status of primary legislation—they can and do go to considerable lengths to make it consistent with fundamental common law principles and rights by seeking to interpret it compatibly with such norms. In the light of that, and bearing in mind that directly effective EU law is currently invulnerable to judicial review on domestic, including common law grounds, we conclude that the benefits of treating all retained direct EU law as primary legislation outweigh any disadvantages.
50.We consider it important that retained direct EU law should be immune from revocation under delegated powers (other than powers contained in this Bill) that are not Henry VIII powers. We take this view in the light of the important nature of the legal norms and rights contained in some retained direct EU law, and bearing in mind that there is no straightforward way of setting out in the Bill a formula that would distinguish between retained direct EU law that does and does not concern such matters. We have also taken account of the fact that delegated powers that constitute Henry VIII powers are generally subject to more robust forms of parliamentary control and scrutiny. In the light of those considerations, we consider that significant constitutional advantages—in terms of the separation of powers and the proper delimitation of executive law-making—flow from treating all retained direct EU law as primary legislation.
51.As drafted, the Bill gives rise to profound ambiguities about the legal status of retained direct EU law by generally assigning it no particular status while attributing to it (either explicitly or obliquely) particular and different statuses for certain purposes. This is likely to cause confusion and legal uncertainty. In our view, it is essential that all retained direct EU law has the same legal status for all purposes.
52.We recommend that the legal status that should be accorded to all retained direct EU law for all purposes is that of domestic primary legislation, as directly effective EU law is closely analogous to domestic primary legislation. This will secure legal continuity and certainty post-exit.
The status of retained direct EU law for particular purposes
53.Although the Bill does not assign a single status to retained direct EU legislation for all purposes, the Government has indicated what status converted law will have for certain specified purposes. These include, for example, for the purposes of the Human Rights Act and the powers to make subordinate legislation which we discuss in turn below.
54.We consider this approach to be fundamentally problematic. It is incomplete because it addresses the status of retained direct EU law for some purposes but not for others. It jeopardises legal certainty because assigning different statuses to retained EU law for different purposes, while assigning no status to it for some other purposes, is highly likely to cause confusion. The creation of such confusion is undesirable and incompatible with the Bill’s objective of securing legal continuity and certainty as the UK leaves the EU.
The Human Rights Act 1998
55.Paragraph 19 of schedule 8 provides that “any retained direct EU legislation is to be treated as primary legislation and not subordinate legislation” for the purposes of the HRA. This addresses only the category of retained EU law—that is, retained direct EU legislation—to which clause 3 gives rise. However, the failure to refer to the category of retained EU law to which clause 4 gives rise is problematic given that, like retained EU law under clause 3, it has no pre-existing or inherent domestic legal status. By conferring a legal status on retained direct EU legislation for the purposes of the HRA, the Bill acknowledges the importance of clarity when it comes to the legal status of retained EU law. This casts doubt on the broader approach of the Bill to leave the status of retained direct EU law unaddressed.
56.If our recommendation is accepted to assign all retained direct EU law a single legal status, paragraph 19 of schedule 8 should be removed from the Bill, since it will become redundant.
57.If the Bill is not amended so as to assign to all retained direct EU law a single legal status, paragraph 19 of schedule 8 should be amended so that it provides not only for the legal status (for the purposes of the Human Rights Act 1998) of retained direct EU legislation under clause 3, but also for the legal status (for HRA purposes) of the category of retained EU law to which clause 4 gives rise.
Delegated powers
58.For two years after exit day, the Government will have the power under clause 7 to amend retained EU law.31 After two years, retained EU law will be subject to amendment only by an Act of Parliament or by delegated powers contained in primary legislation other than the present Bill. The extent to which retained EU law will be vulnerable to amendment (or repeal) through the use of delegated powers in other legislation will turn on whether it is considered primary or secondary legislation. If retained EU law was to be considered primary legislation, then it would be capable of amendment or repeal solely by Acts of Parliament or through the use of Henry VIII powers specifically conferred by other legislation. If, however, it were to be considered secondary legislation, it would be vulnerable to revocation and possible replacement by other secondary legislation more readily: Henry VIII powers would not be needed.
59.Paragraph 3 of schedule 8 provides that pre-exit powers to make subordinate legislation may be exercised, so far as the context permits or requires, to modify retained direct EU legislation. We note, however, that it makes no equivalent provision in relation to the retained EU law to which clause 4 gives rise. This mirrors the failure of the Bill, noted above, to assign a domestic legal status to retained EU law under clause 4.
60.If our principal recommendation to assign retained direct EU law a single legal status is not implemented, paragraph 3 of schedule 8 should be amended to clarify whether the retained EU law to which clause 4 gives rise is to be treated, for delegated powers purposes, in the same way as retained direct EU legislation under clause 3.
61.The effect of paragraph 3 of schedule 8 is that delegated powers in pre-exit Acts of Parliament will, upon exit, apply in a wider range of situations than before, in that they will become exercisable in relation to a new swathe of law, in the form of retained direct EU legislation. This will be unaccompanied, however, by any change in the scrutiny procedures to which the exercise of such powers are subject. Indeed, the implication of paragraph 3 of schedule 8 is that, for the purpose of being amended using powers granted by pre-exit legislation, all retained direct EU legislation is to be taken to have the functional status of subordinate legislation, thereby making it subject to the use of delegated powers whether or not they are Henry VIII powers.
62.We do not consider that it is appropriate to treat all retained direct EU law as secondary legislation for the purpose of determining whether it is subject to delegated powers in legislation other than this Bill. To do so would leave retained direct EU law, as defined by clauses 3 and 4, open to possible revocation by powers within existing Acts of Parliament which may not currently be readily ascertainable. From the perspective of legal certainty this situation is constitutionally unacceptable.
63.This is important because, while some elements of retained direct EU law will deal with relatively mundane and technical matters—that is matters of the type that one would normally expect to find in secondary legislation—the same is not true of the whole body of retained direct EU law. Indeed, some parts of that new body of law will concern legal norms and rights that would, had they not originated in EU law, almost certainly have had the status of domestic primary legislation. Sir Keir Starmer QC MP gave an example of this concern:
“Almost of all the workplace rights, from memory, are in delegated legislation. That has not mattered much until now, because they are underpinned by our EU membership. Nobody particularly felt that their workplace rights were vulnerable, because everybody knew that unless and until either we left the EU or the EU provisions changed, although it was a lesser form of legislation, they were in truth enhanced or ring-fenced. If, through this process, they become ordinary delegated legislation, those rights can be removed by provisions other than primary legislation. The ring-fencing just falls apart with the designation. Tied up with what seems like quite a narrow legalistic point about designation are a whole series of possible constitutional consequences, which are very, very wide-ranging.”32
64.As we recommend above (para 52), all retained direct EU law should be treated as domestic primary legislation for all purposes, including for the purpose of determining whether it is subject to the exercise of delegated powers contained in legislation other than this Bill. We are concerned that the Bill, as drafted, would allow delegated powers (that are not Henry VIII powers) in existing legislation to apply to retained direct EU law. This would be constitutionally inappropriate given that some retained direct EU law will concern legal norms and rights that would, had they not originated in EU law, have been contained in domestic primary legislation.
65.We recognise that the effect of our proposal is to render even technical and mundane elements of retained direct EU law immune from the use of non-Henry VIII delegated powers. However, we do not consider it possible to lay down in the Bill any formula capable of satisfactorily distinguishing between retained direct EU law that should be treated for this purpose as primary legislation and that which should be treated as secondary legislation. We therefore conclude that on balance, and applying a constitutional precautionary principle, it is preferable to treat all retained direct EU law as primary legislation. This will protect important legal norms and rights from revocation by the use of delegated powers which are not Henry VIII powers and which, as such, are often subject to lesser forms of parliamentary control and scrutiny than are Henry VIII powers (which are usually subject to the affirmative procedure).
66.In addition, our proposed designation of all retained direct EU law as primary legislation would greatly improve legal certainty. Since this designation would exempt retained direct EU law from revocation by secondary law-making powers other than Henry VIII powers, it should be far easier to identify its vulnerability to change. Henry VIII powers which might be used to amend or repeal this law are a considerably narrower category than the more general and far broader category of secondary legislative powers to which retained direct EU law would otherwise be vulnerable were it designated as secondary legislation.
Clause 17 and the legal status of retained EU law
67.In relation to determining the status of retained EU law, the Government proposes to rely on clause 17(1), which provides that: “A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.” A power to make consequential provision is far from rare. However, the Government’s view is that this power, in the context of this Bill, can be used by ministers to specify whether particular pieces of retained EU law should be designated as primary or secondary legislation. Lord Neuberger told us that it would be “constitutionally questionable” to use clause 17 to determine the status of retained EU law.33 However, the Solicitor General said:
“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that, I think that, when embarking on new territory, all Ministers tread extremely carefully … This is not an attempt by the Government somehow to change the constitutional landscape deliberately, or unintentionally, which in some ways is worse, to reduce the level of scrutiny and challenge that can be afforded to particular pieces of retained EU law. As I said, a case-by-case basis will be adopted, and the Government’s watchword is: does this increase certainty and improve continuity?”34
68.The exercise of ministerial powers so as to determine the legal status of domestic legislation is wholly unacceptable in constitutional terms. Although, as set out above, we were told that “there is nothing unusual about these powers”, we do not share that view. There may be “nothing unusual” about a power to make provision consequential on an Act. However, the same cannot be said of a ministerial power to determine, on an instrument-by-instrument basis, whether provisions of domestic law are to be regarded as having the status of primary or secondary legislation. Such a power would not merely be unusual; it would be extraordinary and egregious.
69.It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation. The “case-by-case” approach favoured by the Government would produce a highly inconsistent tapestry of EU law, with given provisions having a different status for different purposes, and individual provisions having a different status from each other. This is a recipe for confusion and legal uncertainty.
70.We recommend that all retained direct EU law should be treated as primary legislation and that clause 17 should be amended to make clear that it confers upon ministers no authority to change or otherwise determine the legal status of retained EU law.
28 However the powers contained in the Bill as presently drafted enable ministers to alter the status of retained EU law. We examine this point below.
29 The same will be true of EU law that is converted into domestic law by clause 4.
31 The clause 7 power is not, however, confined to the amendment of retained EU law. We examine clause 7 in detail in Chapter 8.