Dr. Martin Brenncke

Retained EU law: Where next? – Submission of Evidence

My name is Dr. Martin Brenncke, and I am a Senior Lecturer in Law at Aston University. I submit evidence to this call because I have significant experience in the area of retained EU law, evidenced by academic publications and conference presentations. I am also an expert on statutory interpretation, also evidenced by academic publications and conference presentations.

1 In what ways is retained EU law a distinct category of domestic law? To what extent does this affect the clarity and coherence of the statute book?

Retained EU law is a distinct category of domestic law due to multiple reasons. First, some categories of retained EU law (e.g. direct EU legislation, retained EU case law or rights retained under s. 4 EU (Withdrawal) Act 2018 (EUWA)) originate from EU rather than UK institutions. Second, retained EU law captures various different categories of law (e.g. primary legislation, secondary legislation, domestic case law and EU case law) under one umbrella concept. Third, retained EU law treats case law originating from a judicial body (CJEU) that is part of an international/supranational organisation and that stands outside the UK judicial system as UK law (retained EU case law). Fourth, the interpretation of retained EU law is affected by distinct rules of statutory interpretation (s. 6(3) EUWA). Fifth, retained EU law contains elements of EU legal culture (e.g. retained general principles of EU law, the retained Marleasing duty of statutory interpretation and other retained EU interpretative rules and principles).[1] Sixth, certain categories of retained EU law enjoy supremacy over legislation that was passed before the UK’s withdrawal from the EU (s. 5(2) EUWA).

Given that these distinctive elements of retained EU law do not apply to other categories of domestic law, the umbrella concept of retained EU law keeps these elements separate from other parts of the statute book and, therefore, benefits the clarity and coherence of the statute book. The distinctive character of retained EU law is in large part necessitated by the aim of the EUWA to achieve legal continuity. Legal continuity refers to the general purpose of the EUWA to ensure continuity of the law applicable in the UK after the UK’s withdrawal from the EU.[2] Specifically, retained EU law shall operate and be interpreted in the same way as before the UK’s withdrawal from the EU in order to prevent legal uncertainty.[3] In the light of this general purpose of the EUWA, Parliament’s decision to create the distinct category of retained EU law provides continuity for the statute book. This assessment takes into account that EU law was a source of UK law before the UK’s withdrawal from the EU.[4] From that perspective, retained EU law does not negatively affect the clarity and coherence of the statute book post-Brexit in the same way that EU law did not negatively affect the clarity and coherence of the statute book pre-Brexit.

2 Is retained EU law a sustainable concept and should it be kept at all?

Retained EU law is a significant body of law that governs important areas of the economy. Not keeping retained EU law at all would create significant gaps in the statute book. For example, domestic legislation made under s. 2(2) European Communities Act 1972 and retained EU Regulations would disappear from the statute book if retained EU law were simply removed. Therefore, retained EU law is and remains a sustainable concept.

Furthermore, retained EU law is a sustainable concept due to its distinctive elements.[5] Removing its distinctive elements would mean that retained EU law will not operate and will not be interpreted in the same way as before Brexit. This would create legal uncertainty. Given that retained EU law is a significant body of law in important areas of the economy, it is not clear to me what benefits of removing the category of retained EU law or its distinctive elements would outweigh the cost in the form of an increase in legal uncertainty. An exception to this assessment is the principle of supremacy of retained EU law.[6]

3 Do the principles and concepts of EU law continue to provide an acceptable and suitable basis for legislation in post-Brexit UK?

The EUWA’s general purpose to provide legal continuity justifies the presence of retained principles and concepts of EU law. Any meddling with the current model of the EUWA will likely reduce legal certainty. UK courts, practitioners and regulators are familiar with applying principles and concepts of retained EU law because they have applied principles and concepts of EU law for decades. Therefore, retained principles and concepts of EU law generally provide an acceptable and suitable basis for legislation post-Brexit. These principles and concepts are UK law, and they were a source of UK law before the UK’s withdrawal from the EU.[7] An exception to this assessment may apply to those principles and concepts of EU law that are incompatible with or cause significant frictions with other parts of the statute book or constitutional doctrines. With the exception of the principle of the supremacy of EU law,[8] those instances will be very rare. That is because retained EU law is a distinct category of domestic law. Furthermore, EU law and domestic law have coexisted in harmony for decades in the UK.

4 How has the concept of retained EU law worked in practice since it came into effect and what uncertainties or anomalies have arisen, or may yet arise in the future?

There are many uncertainties that originate from the vagueness inherent in certain provisions of the EUWA. This vagueness is a delegation of law-making power from Parliament to the courts.[9]

(1) S. 6(2) EUWA stipulates that a domestic court ‘may have regard to anything done on or after IP completion day by the European Court […]’. Early case law suggests that post-IP completion day CJEU case law can be “highly persuasive”.[10] The Supreme Court’s difficulties in determining what “take into account” means in s. 2(1) of the Human Rights Act 1998 (HRA) show that s. 6(2) EUWA transfers a significant policy choice to the judges.[11]

(2) S. 5(3) EUWA stipulates that the principle of the supremacy of EU law continues to apply to the modified part of pre-IP completion day legislation only if this is ‘consistent with the intention of the modification’. The courts’ interpretation of “consistent with the intention of the modification” is one factor that will influence how relevant the supremacy of retained EU law will remain over time.[12]

(3) Even though s. 6(3) EUWA domesticates EU interpretative rules and principles,[13] the question of to what extent the EUWA domesticates the CJEU’s teleological approach to statutory interpretation is not clearly answered by the Act itself. I have argued that the EUWA does not domesticate the CJEU’s teleological approach one-to-one. This has the effect that the legal method applicable to retained direct EU legislation and rights retained under s. 4 EUWA needs clarification by the Supreme Court.[14] “One consequence of this viewpoint is that the EUWA gives rise to a new methodology for the interpretation of retained direct EU legislation and rights retained under section 4. This methodology can be characterised as a hybrid as it combines elements of (retained) EU and domestic legal methods. It is neither identical with existing domestic legal methods nor with EU legal methods. It also has the potential to create legal uncertainty […], similar to the uncertainty that existed before the interpretation of section 2(4) ECA and section 3(1) Human Rights Act 1998 (HRA) became settled case law in the Supreme Court.”[15]

(4) S. 5(5) EUWA hands over contested policy choices about the extent of human rights protection to the judiciary.[16]

(5) The phrase ‘consistent with the intention of the modifications’ in s. 6(6) EUWA leaves it to judges to determine whether modified retained EU law can be interpreted differently or according to the same standards as unmodified retained EU law. The vagueness inherent in s. 6(6) EUWA is a source of legal uncertainty until the interpretation of s. 6(6) becomes settled case law in UK courts.

5 (a) In light of the doctrine of parliamentary sovereignty, what was the rationale for retaining the principle of the ‘supremacy of EU law’? (b) What is the most effective way of removing the ‘supremacy of EU law’ and other incidents of EU law from the statute book?

Appropriateness of the supremacy principle?

The rationale for retaining the principle of the supremacy of EU law was the strong principle of legal continuity that permeates the EUWA.[17] However, the purpose of the EUWA to achieve legal continuity after Brexit does not require that the principle of the supremacy of EU law continues to apply after Brexit.[18] The intended outcome of s. 5(2) EUWA could have been achieved without reference to the supremacy principle.[19]

One effect of s. 5(2) EUWA is that the qualifications of the orthodox doctrine of parliamentary sovereignty that the supremacy principle entails continue to exist after Brexit.[20] These qualifications relate to a modification of the doctrine of implied repeal and a modification of the second limb of the doctrine of parliamentary sovereignty according to which no body or person can set aside the legislation of Parliament.[21] Given that the supremacy principle conflicts with the orthodox doctrine of parliamentary sovereignty, it appears justified to remove this specific element of retained EU law. Such a change would not completely remove the supremacy principle from the UK statute book. That is because the supremacy principle will continue to exist in the form of the supremacy of directly effective rights enshrined in the UK-EU Withdrawal Agreement (s. 7A(2), (3) EUWA; cf. art. 4(2) Withdrawal Agreement).

How to remove the supremacy principle

Option 1: A replacement for s. 5(1), (2) EUWA could read as follows:

(1)   The principle of the supremacy of EU law is not part of domestic law on or after IP completion day.

(2)   If an incompatibility arises between retained EU law under s. 3 or s. 4 and any enactment or rule of law passed or made before IP completion day, priority shall be accorded to retained EU law.[22]

Option 1 removes the supremacy principle, but this option continues to put a strain on the orthodox doctrine of parliamentary sovereignty if giving priority to retained EU law involves disapplying legislation, the giving priority of secondary over primary legislation or deviations from the doctrine of implied repeal.

A second Option would be modelled on s. 4 HRA. A Convention-compatible interpretation under s. 3(1) HRA is the prime remedial measure, and a declaration of incompatibility under s. 4 HRA is a measure of last resort.[23] In a similar sense, the CJEU and national courts consider the interpretation of national law in conformity with EU law as the first port of call when resolving inconsistencies between national legislation and EU law.[24] They resort to the supremacy principle only when a conforming interpretation is not possible. The duty to interpret national law in accordance with EU law was domesticated; it is retained EU law under s. 5(2) EUWA.[25] If the supremacy principle were replaced with a declaration of incompatibility, UK courts would continue to prioritise finding a compatible interpretation over a declaration of incompatibility. Therefore, such declarations would be rare. Furthermore, Paul Craig has rightly noted that “post-Brexit it is extremely unlikely that we are going to discover a closet full of inconsistencies between EU law and pre-existing UK law.”[26] Hence, replacing the supremacy principle with a declaration of incompatibility is unlikely to strain Parliament’s limited resources. Such a replacement for s. 5(1), (2) EUWA could read as follows:

(1)   The principle of the supremacy of EU law is not part of domestic law on or after IP completion day.

(2)   If it is not possible to interpret an enactment or rule of law passed or made before IP completion day in a way which is compatible with EU law that is retained under s. 3 or s. 4, a court may make a declaration of incompatibility.

A third Option would be modelled on s. 29(1) EU (Future Relationship) Act 2020. Such a replacement for s. 5(1), (2) EUWA could read as follows:

(1)   The principle of the supremacy of EU law is not part of domestic law on or after IP completion day.

(2)   If it is not possible to interpret an enactment or rule of law passed or made before IP completion day in conformity with EU law that is retained under s. 3 or s. 4, the enactment or rule of law has effect with such modifications as are required for the purposes of complying with retained EU law.

S. 29(1) EU (Future Relationship) Act 2020 does not lay down a principle of interpretation but an automatic process of modification.[27] Modification includes amendment, repeal and revocation.[28] This is a truly astonishing provision, and a wide interpretation of s. 29(1) rips through established principles of the separation of powers between Parliament, the executive and the courts. The interpretation of s. 29(1) has not yet been settled in courts. It should not be used as a blueprint for replacing s. 5(2) EUWA.

A fourth Option would take into account that incompatibilities between retained EU law and pre-IP completion day law will likely be rare. Therefore, it appears possible to simply remove the principle of supremacy from s. 5 EUWA. Any increase in legal uncertainty will likely be negligible. A new s. 5(1) could read: “The principle of the supremacy of EU law is not part of domestic law on or after IP completion day.” S. 5(2), (3) EUWA could be deleted. Rare incompatibilities between retained EU law and pre-IP completion day domestic law would be resolved by the courts based on conventional principles, including the doctrine of implied repeal.

Other “incidents of EU law”

Even without the supremacy principle, retained EU law remains a distinct category of EU law due to other distinctive elements.[29] Throughout my answer to this call for evidence, I argue that removing these other elements or the category of retained EU law from the statute book would lead to legal uncertainty and an increase in litigation (costs). I cannot see how the benefits of such legislative changes would outweigh these costs.

6 Should retained EU law be interpreted in the same way as other domestic law? Should the case law of the Court of Justice of the European Union have any relevance in the interpretation of retained EU law?

I argue in this section that retained EU law should continue to be governed by distinct principles of statutory interpretation and that the case law of the CJEU should continue to have the same relevance as it is currently given by the EUWA.

Methods of interpretation

S. 6(3) EUWA creates legal continuity of statutory interpretation by retaining EU interpretative rules and principles.[30] These EU interpretative rules and principles are laid down in retained EU case law. One example is the retained Marleasing duty of statutory interpretation for EU-derived domestic legislation.[31] Another example is retained EU interpretative rules and principles that apply to the interpretation of direct EU legislation and rights retained under s. 4 EUWA.

Conventional domestic principles of statutory interpretation and (retained) EU principles of statutory interpretation are not identical but deviate from each other.[32] One consequence is that the interpretation of retained EU law is affected by distinct rules of statutory interpretation that do not apply to other parts of the statute book. For example, the retained Marleasing duty of statutory interpretation goes well beyond conventional domestic canons of statutory interpretation.[33] Interpreting retained EU law in the same way as other domestic law would imply a change in methodology for a significant body of law. One consequence of such a change would be that previously settled interpretations of retained EU law become open to debate in courts. A change in methodology for the interpretation of retained EU law would lead to legal uncertainty and an increase in litigation (costs). Lawyers would attempt to argue that a specific provision in retained EU law now justifies a different interpretation based on different interpretative principles. Lawyers would also compare both EU and domestic methods and assess whether any difference in interpretative methodology warrants a different interpretation of a specific provision of retained EU law. All of this adds to litigation costs. I cannot see how the benefits of a change of legal methodology for retained EU law would outweigh the costs of a potentially significant reduction in legal certainty given that UK courts, regulators and practitioners have applied EU interpretative rules and principles for decades.

The following example illustrates the negative consequences that a change in legal methodology would entail. A pre-Brexit interpretation of a provision (a) in retained direct EU legislation by the UKSC is a binding precedent. Provision (a) was interpreted by the UKSC based on EU methods of interpretation. Let us assume that there is no pre-Brexit case law for the neighbouring provision (b) in the same piece of legislation. If provision (b) were construed based on a different legal methodology and if the same words appeared in both provisions but were given different meanings in provision (a) and in provision (b), the interpretation of retained EU law would become a highly complex and fragmented exercise.[34] The UKSC may of course decide to overrule its own interpretation of provision (a) because other principles of statutory interpretation now govern the interpretation of retained direct EU legislation. Such an outcome would still entail an increase in legal uncertainty and litigation (costs) as described in the previous paragraph.

One example of an EU rule of statutory interpretation that has no equivalent in UK law is the interpretation of an EU regulation in the light of its recitals. EU regulations contain recitals that explain the reasons for the legislation. The CJEU takes recitals into account when ascertaining the purpose of EU regulations. This interpretative principle is retained EU case law as it relates to direct EU legislation.[35] UK legislation (other than retained EU law) does not contain recitals, which is why conventional domestic methods of statutory interpretation are silent about the use of recitals in statutory interpretation. Interpreting direct EU legislation in the same way as other domestic law would therefore mean that the recitals ought to be ignored. This would overlook that the recitals form part of retained direct EU legislation. It appears unlikely that UK courts would simply ignore recitals in direct EU legislation even if retained EU law were to be interpreted in the same way as other domestic law. Yet, it is not clear how UK courts would treat these recitals in this scenario given that there is no equivalent in other areas of domestic law. This illustrates the increase in legal uncertainty that a change in statutory interpretation for retained EU law would entail.

CJEU case law

I have argued in the previous paragraphs that retained EU principles of statutory interpretation that are laid down in retained EU case law should continue to govern the interpretation of retained EU law. I would like to reiterate that British courts, regulators and practitioners are familiar with CJEU case law and have applied this case law for decades. The domestication of this case law along with EU legislation achieves legal continuity. Changing the relevance of EU case law for the interpretation of retained EU law would lead to legal discontinuity and an increase in legal uncertainty and litigation (costs). It would be one thing to make retained EU case law non-binding. It would be another thing to make it irrelevant. Completely removing retained EU case law from the interpretation of retained EU law would remove a significant number of precedents and case law from UK law. The meaning of ambiguous and vague words in retained EU law, once clarified and concretised by retained EU case law, would potentially be open to a different interpretation under a different methodology. Removing retained EU case law would therefore lead to a significant increase in legal uncertainty and litigation (costs).

Regarding s. 6(2) EUWA and non-binding CJEU judgments made after IP completion day, I do not think that the government is contemplating legislation that explicitly instructs judges not to have regard to such CJEU judgments. After all, UK courts have a long history of using non-binding foreign legal materials as a source of inspiration. S. 6(2) EUWA fits within this paradigm as it gives the courts the power to decide about the extent to which they want to have regard to these CJEU judgments (“may have regard”).

7 Should a wider range of courts and tribunals have the ability to depart from retained EU case law and should it be binding at all?

I have argued in my response to Question no. 6 that retained EU case law should remain binding to the extent that s. 6 EUWA prescribes.

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