The Repeal Bill—examining the legal issues

In reaction to the Repeal Bill, Peter Sellar, of Axiom Advocates, offers his thoughts on some of the key legal questions and emphasises the need for pragmatism in order to minimise the potential for future litigation and legal uncertainty.

Original news

The government has published the European Union (Withdrawal) Bill—commonly known as the Repeal Bill. The primary purpose of the Bill is to repeal the European Communities Act 1972 (ECA 1972), purportedly ending ‘the supremacy of EU law in the UK’. The Bill also seeks to adopt current EU law into UK law at the date of Brexit and create powers capable of making secondary legislation in order to prepare the UK statute book. Lawyers suggest the Bill creates both risks and opportunities, depending on the pragmatism of the government and the ensuing parliamentary scrutiny.

What is the background of the Bill?

On the day the UK exits the EU, as currently intended, much of our current law which results from our membership of the EU is at risk of becoming unenforceable or invalid. The principal reason why that is the case is that the law’s validity depends on ECA 1972 and if the UK is to effect its exit from the EU, ECA 1972 must be repealed. It must do so because otherwise EU law will continue to be applicable in the UK after Brexit.

The aim of the European Union (Withdrawal) Bill (otherwise known as the Repeal Bill) is therefore to grandfather all existing EU law, which has become UK law, so that the law on the day before we exit the EU is the same as the law on the day we exit, and indeed the day after we exit.

The primary concern is to ensure legal certainty. If nothing were done, EU law would still apply despite the UK having taken a decision to exit the EU. If ECA 1972 were simply repealed, however, without converting UK law which derives its legal authority from EU law, we would be facing unprecedented lacunae and disorder in the law.

The Bill, therefore, attempts to lay out a legislative roadmap which will allow the application of UK law to continue as if nothing really has happened unless and until Parliament (Westminster and devolved) takes active decisions to make changes under the UK’s newly found ‘sovereignty’.

What are the key provisions and powers included?

The (tabloid) headline is found in section 1 of the Repeal Bill ‘The European Communities Act 1972 is repealed on exit day’. ‘Exit day’ may well become a trending soundbite in due course. Of note is that the date is not yet known—theoretically it could be before 29 March 2019, 29 March 2019 itself, after 29 March 2019 or—conceivably—never. Its determination will be fixed by a government minister, not by the UK Parliament (section 14(1) of the Repeal Bill), which raises a question of scrutiny in and of itself.

The main parts are found in the subsequent 18 sections and nine schedules of the Bill. Those must be read alongside the relatively detailed 70 pages of explanatory notes in order to understand what they mean.

Key provisions include:

Section 3―which explains what the UK government considers to be the categories of EU law subject to grandfathering. Novel concepts have been created (such as ‘retained direct EU legislation’ which is described confusingly in the explanatory notes also as being ‘preserved law’)

Section 6―which explains the authority, if any, that judgments of the Court of Justice of the European Union will continue to have after ‘exit day’. It is of interest given that this is one of the UK government’s oft-repeated red lines

Section 7―which will perhaps be subject to the most (political) scrutiny and criticism. Ministers will enjoy a time-limited and competence-limited discretion to regulate to avoid failures and deficiencies in the EU law that is being grandfathered

Section 11―which describes the effect of the Bill on the devolved settlements by way of amendment to the Devolution Acts. Importantly, under the Repeal Bill, s 23(2) of Sch 2, Pt 3, the devolved parliaments and assemblies power to modify retained EU law is restricted so that they cannot make any change to grandfathered EU law that would be inconsistent with changes made by the government under the Bill

The Bill also goes out of its way to confirm in rather stark language at section 5(4) that ‘the Charter of Fundamental Rights is not part of domestic law on or after exit day’.

Are there any notable inclusions or omissions?

The inclusion of the stark reference to the Charter of Fundamental Rights may raise eyebrows because it is an overt attack on what one generally considers to be human rights legislation. It also perhaps provides an indicator (by inference only) of this government’s priorities going forward.

Given that the UK government’s manifestos have, until the recent past, included a commitment to withdraw from the European Convention of Human Rights, to repeal the Human Rights Act 1998 and to adopt a UK Bill of Rights, this may be that first step. It invites challenge from opposition parties, in particular from Labour.

From a devolution perspective, the overall impression is one of seeking to restrict legislative competence. That contrasts sharply with political statements on the record by responsible ministers to the opposite effect when describing what the devolved legislatures could expect from the Bill. It invites opposition from the SNP and Labour in Wales, although not from the Democratic Unionist Party of course.

What are the advantages and disadvantages of the drafters’ approach?

Generally, the Bill suffers from the usual and traditional shortcomings of most UK Acts and regulations which is that it is hugely complex and intricate, requiring a reader to have regard to a matrix of various other Acts and legislation in order to understand what is being proposed.

The explanatory notes are naturally of assistance but, as with the reader’s concentration, one has the impression that the drafters themselves started to produce less detail the longer the notes carried on.

Specifically, the Bill has had to invent concepts of law. It does so admirably but as with all novelties, one harbours a latent concern that there will be lacunae. This, of course, is effectively acknowledged and hence the various powers of the legislature to remedy such.

In terms of overall approach, it is not clear what else the drafters could have done. A simple repeal of the ECA 1972 would have left not just lacunae in the law, but perhaps disorder as well which no civilised society based on the rule of law could (one imagines) democratically countenance.

That said, given that the explanatory notes do provide examples of, for example, what it considers to be directly effective provisions of the EU Treaties which will be grandfathered on exit day, the drafters could have listed exhaustively all the various legal instruments (whether UK Acts, regulations or EU regulations, directly effective provisions etc) that are to be grandfathered (but which will not be transposed onto the UK statute book).

Yes, it would have been a long list and necessarily longer because a cautious approach would have had to be taken to avoid lacunae (and disorder), but it could have been done and could still be done. Instead, there will have to be some guess work as to precisely what falls within the category of retained EU law etc and that will be subject to debate, argument and, no doubt, litigation.

Which provisions are most vulnerable to challenge? On what grounds?

The use of ministerial power to remedy failures and deficiencies, subject to various levels of parliamentary scrutiny (see Repeal Bill, Sch 7 in that regard), will be subject to lengthy debate. While the exercise of that power is limited in time (two years after exit day) and subject to express exceptions (see Repeal Bill, s 7(6) for example), the definition of ‘failure’ and ‘deficiency’ is exceptionally vague. They are described in the explanatory notes as follows:

…a failure means the law doesn’t operate effectively whereas a deficiency covers a wider range of cases where it does not function appropriately or sensibly.

The fact that ministers will, in some instances, be able to make changes to legislation through the negative resolution procedure and even the made affirmative resolution procedure requires a significant level of trust from fellow parliamentarians in the ministers and from the constituents in their parliamentarians to be available and vigilant in terms of exercising parliamentary scrutiny. Members of the House of Lords will naturally play an important role in the scrutiny process—if they wish to.

The apparent limitation of devolved competence, where by contrast the word ‘bonanza’ of new powers has been used in Parliament, will be contentious. For example, para 36 of the explanatory notes explains that after exit day, the Bill:

…provides a power to release areas from the limit on modifying retained EU law where it is agreed that a common approach established by EU law does not need to be maintained and can be changed. This power is exercisable by Order in Council and the Order must be approved by both Houses of Parliament and the relevant devolved legislature.

Other examples restricting the ability of devolved legislatures to change the laws in such a way as to be different from the law enacted by Westminster are evidenced elsewhere (eg Repeal Bill, Sch 2, Pt 1, para 3(2)).

There is also lack of clarity over the application of EU law in UK courts—for example, if there is a preliminary reference from a UK court before the Court of Justice which is still to be finalised on exit day, what is its status (see Repeal Bill, s 6(1)(b))? What does ‘appropriate’ regard mean in Repeal Bill, s 6(2)?

What are the procedural requirements, challenges and timescales for passing the Bill?

Given the precariousness of the government’s position in light of its failed attempt to increase its majority at the recent General Election, it must be receptive to opposition and backbench overtures for fear of losing its majority.

In terms of challenges, one may be posed by the devolved administrations, given that a legislative consent motion will be sought from them for certain parts of the Bill. However, even if such consent was withheld, if Westminster was to proceed with adopting the Bill anyway, the devolved administrations could do nothing about it legally. One recalls the words of the majority decision in Miller [2017] UKSC 5, at para 151:

In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.

In terms of timing, passage of the Bill must be considered as an absolute urgency. The reason for that it is at least two-fold.

First, there is much work to be done by the ministers once granted discretion to legislate in preparation for Brexit. There are thousands of regulations to be adopted in order to remedy failures and deficiencies. There are also very difficult decisions to be taken in respect of recreating EU agencies and administrative bodies that will be lost to the UK on Brexit (unless special arrangements are agreed) and which will take considerable time, money and effort to replicate before exit day. It is hardly conceivable that such could be achieved even with two years’ head start, far less one year which is likely to be the case.

Second, the cliff-edge option cannot be ruled out, particularly in terms of preparing the UK statute book for Brexit. The UK and EU27 are working to tight timescales under Article 50 TEU. Theoretically they could agree to the UK’s withdrawal sooner than 29 March 2019. While extremely unlikely, the inability to rule this out, and the amount of work to do in order to prepare whatever the timescale, creates the risk of there being serious lacunae in the law, and so the potential for disorder is increased.

The Bill therefore must proceed and pass as rapidly as possible—expect compromise.

What are the practical implications of the Bill?

Behind the scenes, one must hope that the civil servants already have a list of failures and deficiencies, that the regulations are being drafted, that diplomatic overtures are formally being made to the devolved legislatures and informal ones to backbenchers and opposition leaders.

From a legal practitioner’s perspective however, there are some practical questions that arise from the Bill, for instance:

  • what happens to pending preliminary references from the UK court and EU administrative actions involving the UK on exit day?
  • if there is an ongoing Francovich damages action which straddles exit day, what is its status (see para 155 of the explanatory notes)?
  • how will anyone know which part of domestic legislation is designed to implement an EU legal obligation prior to exit day if no reference is made to it (see para 75 of the explanatory notes)?
  • if the UK has failed in its obligations under EU law prior to exit day to implement an EU Directive at all, and/or to implement correctly, what remedies (if any) are available to an injured party after exit day?
  • what effect does exit day have on periods of prescription of a potential claim if the damage coincided prior to exit day?
  • what laws are likely to require amendment to remedy a failure or a deficiency such that third parties (industry, NGOs, individuals etc) can look to lobby their interest accordingly?
  • will judges in Scotland consider it appropriate to apply EU judgments in a different way from judges in England and Wales? Should there be this disparity?

A further question is how will EU citizens be treated in the UK? The examples at para 25 of the explanatory notes to the Bill provide little solace or reassurance given that the reciprocal rights of citizens are bracketed in the general category of a potential problem ‘deficiency’:

Once the UK leaves the EU, there will be areas of law where policy no longer operates as intended. One element of EU law is reciprocal arrangements between states including reciprocal rights of citizens. As a matter of international law, those obligations will fall away for the UK at the point where the UK leaves the EU. At the same point, EU States’ obligations to the UK and its citizens will also fall away. Any such obligations beyond that time would only exist if they were agreed between the EU and the UK as part of the negotiations that have recently commenced. However, without a correction, the UK’s law would still include recognition of the EU citizens’ rights. The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU Member States are providing no such rights to UK nationals.

What are your predictions for the passage and constitutional implications of the Bill?

On the assumption that Brexit remains the will of the people, the Bill will pass because it has to pass in order to avoid the associated legal vacuum, uncertainty and disorder. As a result, the legislative consent of the devolved legislatures is not imperative—the absence of such consent can and will be ignored if necessary.

The devolved administrations

The Scottish Parliament will not give their consent unless the Bill is amended substantially. The Bill will proceed as noted and this will undermine the harmony of the political relationships, but whether that is translated into any concrete constitutional action (a second independence referendum in Scotland, for example) is unlikely in the short term unless there is a dramatic shift in position from the ‘unionist’ parties in Scotland.

Despite not giving its consent, I do not see much push-back of any note from the Welsh Assembly, although the First Minister of Wales has joined the First Minister for Scotland in calling for amendments.

In all of this, Stormont is possibly being forgotten given that the Northern Ireland Executive is not even sitting. The Bill appears at first blush to do nothing to resolve the keenly felt border issues, among many other issues specific to Northern Ireland.

House of Lords

Undoubtedly much debate will centre around significant legal changes such as removal of the Charter of Fundamental Rights, and powers of scrutiny. And depending on their staying power, members of the House of Lords could play a key future role in ensuring democratic scrutiny of any exercise of the ministerial powers that are enacted under the Bill.

The opposition parties

Again, reality may bite in that there ought to be recognition that, should the Bill fail, there will be lacunae in the law and potential disorder. That threat works both ways, however, in which case there is a real opportunity for opposition parties to have included what they wish into the Bill. Of course, their opposition would be immeasurably strengthened if they knew that the Article 50 notification of 29 March 2017 was revocable (and the potential lacunae/disorder avoidable altogether).

Interviewed by Julian Sayarer.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article first appeared on LexisPSL Public Law.

Filed Under: Brexit

Relevant Articles
Area of Interest