Professor John Bell, University of Cambridge—Written evidence (EUW0001)

Structure

The structure of the Bill is in appropriate. Too much of significance is in the Schedules. For example, the European Union (Withdrawal) Bill provides powers to a Minister of the Crown under Schedule 7, para. 3, to make regulations, if he claims it is urgent for achieving an effective law on Brexit day. Such regulations may do what could otherwise be done by Act of Parliament (cl. 7(4)). They can be made without a draft being presented to Parliament and without parliamentary approval. (This ‘made affirmative procedure’ is explained in laconic terms by para. 227 of the Explanatory Memorandum and para. 48 of the Memorandum on Delegated Powers.) They remain in force for a month before they need approval. These provisions are found in the Schedule on “Scrutiny of Powers”, but no scrutiny is actually provided. These urgency powers are so significant that they should be in a separate clause, not in a Schedule.

Retained EU law

Clause 6 has a muddled understanding of EU law which is unclear and unhelpful. It will make it more difficult to make transposed EU law simply an ordinary part of the laws of Scotland, England, Wales and Northern Ireland. Rather than being transformed into living law within the various national legal systems of the UK, it will function as a kind of zombie EU law, which died on exit day, but continues undead to govern the courts and the devolved assemblies for years to come, well beyond the sunset period for the exercise of powers under the Bill.

1. The technique used here is far more detailed than in sections of bills which preserve the pre-existing law in relation to transitions from one regime to another, e.g. s. 5 Seychelles Act 1976. These previous Acts of Parliament simply create a default position that existing law will continue to apply unless it has been changed explicitly. That is done sufficiently by clauses 2(1) and 3(1). But the Bill goes further. In the EU(W)B, EU law is essentially frozen on 29 March 2019 (exit day)  and then it operates as a higher law restricting the courts (clause 6) and the devolved assemblies (clause 10 and Schedule 2), until specific measures are made in Westminster to thaw parts of it. That has the effect of vesting most of the powers which are repatriated from Brussels in Westminster, except when Westminster has specifically devolved them. It retains the priority of EU law over national courts, except insofar as the UK Supreme Court (not the national appeal courts) determine. The status of retained EU law will continue beyond the two years of the powers within the EU(W)B. As a result, EU law will have a kind of zombie existence within the various legal systems of the UK.

2. The basic EU law position should be as follows:

Treaties and Directives which have not been implemented lapse on exit day.

Directives which have been implemented are already law in the UK and continue to be so (clause 2(1), unless the text is modified under the EU(W)B. The national legislation will make it clear that the Directive is a guide to the intention of Parliament and that continues to be the case.

Regulations and tertiary legislation which have direct effect need to be transposed into national law within the UK by virtue of powers within the EU(W)B. This is the primary focus of the EU(W)B. Clause 3 gives this the epithet “retained direct EU legislation”.

3. Clause 6 unnecessarily clutters the simplicity of what needs to be achieved by regulating “retained EU caselaw” and “retained EU general principles of law”. This seems to be modelled on the preservation of common law rules in other areas (criticised by Munday cited below). But this does not work in the case of EU law.

In the case of EU law, as Arnull states,[1] case law is not a source of law. The decision of the CJEU must state its legal basis (see Rules of Procedure of the Court, art. 89(1)(d) and art. 19(3) TEU). That legal basis must refer to a treaty or other EU legislative provision. Case law interprets the legal rules, and if the legal rules are no longer in force, the dependent case law also ceases to have force, except by way of analogy. Arnull (pp. 627, 631-3) notes that CJEU case law is an authoritative source of interpretation of EU law, but the rulings of the ECJ are not treated as binding the lower European Court, the Court of First Instance, and likewise do not formally bind national courts (contrary to Explanatory Memorandum para. 107). Clause 6(7) defines ‘retained EU case law’ as ‘any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day’. This presupposes that case law operates much the same way as a precedent in English law. But, as Arnull writes, ‘The absence of a doctrine of binding precedent in Community law means that no meaningful distinction can generally be drawn between the ratio decidendi of a judgment of the Court and obiter dicta’ (p. 631). As a result, it is unclear what is meant by a principle being ‘laid down’ in cl. 6(7).

So, if a legislative provision is retained, the case law interpreting it is retained and clause 6(2) is sufficient. If the legislative provision lapses or is abolished, then the case law on it lapses. There is no space for special regulation of “retained EU case law”. Suppose a European Court precedent has interpreted a VAT Directive which has been implemented into a UK VAT Act. Suppose the CJEU after exit day departs from that interpretation. Why is it necessary that national courts in the UK should have to await a decision of the Supreme Court (clause 6(4)) in order to decide what to do? Clause 6(4) seems to make CJEU case law more binding after Brexit than before!

4. Schedule 1 and clause 6 invent the concept of ‘retained EU general principles of law’. According to the current President of the Court of Justice[2] of the European Union, general principles of law in EU law serve three functions. First, they fill normative gaps in EU legislation to ensure the autonomy and coherence of the EU legal order. Secondly, they serve as an aid to interpretation of EU law and national implementing law. Thirdly, they are grounds of judicial review against acts of the Union or Member States implementing EU law. Clause 6(3) seems to focus on the second function, leaving the other two unclear. Furthermore, the Bill assumes that the scope of general principles is clear (see Explanatory Memorandum para. 50). It is not. There is a debate about whether the general principles apply only in an individual’s relation to the Member State or the Union, or also apply between individuals (e.g. the principle of non-discrimination).[3] According to Laenerts and Guttierez, ‘the Charter provides a sound legal basis for the establishment of general principles’.[4] Yet clause 6 (7), para. (b), seems to define them excluding the Charter (which ceases to have effect by virtue of clause 5(4). The function of general principles was to complete the provisions on rights prior to the legal effect given to the Charter by the Lisbon Treaty. This is seen in the case law such as Mangold and Kücükdeveci. Does the legislation intend to repeal the Charter and the re-introduce it by the back door? General principles of law fill gaps in EU law taken as a whole. Once EU law has been dismembered by removing the Treaties from “retained EU law”, it is not clear what coherently remains to be applied on an ongoing basis in the UK courts.

5. The Bill has chosen a structure of preserving pre-exit EU law in a manner which has been contested in relation to other Acts of Parliament. If the preserved law is settled, then preserving it in an unspecified way generally does not cause problems. But where the law is uncertain or contested, then this technique is problematic. Whereas preserving EU enactments will at least be clear, as they will be specifically incorporated into UK or devolved legal systems, this is not the case for case law or general principles.

My colleague, Dr Roderick Munday,[5] has written clearly why ‘preserving’ prior common law caselaw is difficult. In the common law, case law is a distinct source of law and so it makes sense to identify in a legislative scheme the parts of the common law which are to be retained. All the same, the common law is fluid and capable of correction, so it is problematic to fix the current understanding of the common law at a specific date. That is why Munday points out that the legislator normally does not use the technique of preservation, but uses other, more fluid techniques, such as that cited from the Seychelles Act.

Scrutiny

The provisions on Scrutiny are inadequate.

1. The Bill does not recognise the magnitude of the task and therefore the need to have differently designed procedures to ensure adequate scrutiny. Current estimates I have heard from officials suggest the number of EU provisions to be amended is over 1000. The Bill assumes current procedures will be used, but that is simply not possible. Very serious attention needs to be given to how scrutiny will operate.
2. The provisions on devolution include provisions on joint decision by a Minister of the Crown and a Welsh Minister. But, in this context, the provisions for scrutiny are terse in Schedule 7, para. 2. The laying before both the Assembly and the UK Parliament will require careful coordination.

Devolution

Contrary to what was suggested by the Constitution Committee, there has been no expansion of the competence of the devolved assemblies. The structure adopted is that the supremacy of EU law as a field outside the competence of the devolved assemblies is replaced by the supremacy of Whitehall-controlled “retained EU law”. The devolved assemblies are not allowed to modify retained EU law unless this is authorised by Order in Council made by a Minister of the Crown.

For instance, s. 80 of the Government of Wales Act 2006 is amended to exclude competence of the Welsh Assembly to make legislation in respect of “retained EU law” (Schedule 3, para. 2 and clause 11). Corresponding provisions are made for the other devolved assemblies. Clause 6(7) defines retained EU law to include case law and general principles of law, which I have already shown to be problematic concepts. The Assembly is going to need a textbook which states what was EU law on 29 March 2019 in order to carry out its functions for years to come. The idea that EU law in this zombie state continues to govern devolution creates a distortion of the balance of powers between Whitehall/Westminster and devolved territories. Para. 69 of the Memorandum on Delegated Powers provides an inadequate justification for this effective replacement of Brussels by Westminster and Whitehall.

Overall

The Bill is difficult to read and to follow its logic. It is a measure for which a Preamble similar to that which is provided by the recitals of any EU legislation would be really helpful to guide the many people who have to interpret it.

August 2017