18: Great Repeal Bill – Ooh This Uncertainty
In our last two posts, we looked at the Bill’s ‘Henry VIII powers’ and the scrutiny mechanisms proposed for secondary legislation. This post discusses some of the uncertainties which arise from those clauses of the Bill which preserve EU-derived domestic legislation and transpose EU law and rights into domestic law.
First, as previously considered, clause 2(1) provides that ‘EU-derived domestic legislation’ is to continue ‘to have effect in domestic law on and after exit day’, notwithstanding the repeal of the ECA by clause 1. The primary purpose is clearly to preserve the statutory instruments (SI’s) made under the ECA, and this is done by clause 2(2)(a). Note that the Bill preserves the text of the legislation.
However, the definition of ‘EU-derived domestic legislation’ (that which is “preserved”) goes beyond UK SI’s made under ECA to also include:
- Other enactments made ‘for a purpose mentioned in’ ECA, s.2(2);
- Legislation ‘relating to anything’ made under ECA, s. 2(2) or done ‘for a purpose mentioned in’ section 2(2); and
- All legislation ‘relating otherwise to the EU or the EEA’.
Of course, these categories of legislation would not lapse as a consequence of the repeal of the ECA, because they were not made under the ECA. Accordingly, clause 2 should be understood to also have a secondary purpose – namely, the creation of a new sub-category of UK law (EU-derived domestic legislation) to which the ‘correcting’ powers of the Bill may be applied.
Uncertainty arises as to the scope of these latter three categories: What is ‘a purpose mentioned’ in ECA, s.2(2)? How far does ‘related to anything’ made under ECA, s.2(2) extend? How far does ‘relating otherwise’ extend? This raises the potential for challenge to ‘correcting’ SIs made under the Bill on the basis that they are ultra vires, ie they go beyond the scope of what is authorised under the Bill. The Explanatory Note, para. 75 appears to add a further layer of uncertainty by stating:
‘The category of legislation that is preserved is widely drawn. However, under this clause, domestic legislation is only preserved so far as it is operating for any of the purposes set out at subsections (2)(a) to (d). If it is not operating for those purposes, it will not fall within the ambit of this section.’
The Bill only refers to ‘purposes’ in clause 2(2)(b) – is the Explanatory Note suggesting a purposive requirement which goes beyond that?
Second, clause 3 provides for the incorporation of direct EU legislation (eg EU regulations, decisions and tertiary legislation) into domestic law. Again, note that it is the text which is to be transposed. Clause 13 and Schedule 5 require the Queen’s Printer (ie the National Archives) to print out all that EU legislation so that a repository of it is available post-Brexit, to be applied as UK law. So far, so good.
However, ‘direct EU legislation’ is defined as excluding this EU legislation so far as ‘its effect is … reproduced in an enactment to which section 2(1) applies’. The Explanatory Note, para. 81 states that this exclusion ‘is to avoid duplication on the statute book after exit’. Is this necessary? At present, that ‘duplication’ within UK law exists: EU regulations (which have direct effect) and UK law (which reproduces those requirements) can exist simultaneously, and reliance can be placed on both. It will be a source of uncertainty, and so legal dispute, in future whether a particular EU regulation (or part thereof) has been ‘incorporated’ into UK law under the Bill, or if it has not because its ‘effect’ was (pre-Brexit) reproduced in domestic law. What does ‘effect’ mean in this context?
The text published by the Queen’s Printer will only be a starting point in answering this question. The Queen’s Printer’s duty is simply to print the text of what could (subject to the application of the provisions of the Bill) form retained ‘direct EU legislation’. That printed repository will not constitute a definitive corpus of law – indeed, none will exist.
Third, clause 4 converts into domestic law other EU rights, remedies etc. arising under EU treaties and directives (eg where the Member State has not implemented the directive properly). Note that it is the rights etc. themselves which are saved, not the text of those instruments which gave rise to the rights etc. (Explanatory note, para. 88).
Uncertainty arises from clause 4(2) which provides that such rights are not available if they ‘form part of domestic law by virtue of section 3’ (the ambit of which is itself unclear, as discussed above) or they ‘arise under an EU directive … and are not of a kind recognised by’ the ECJ or the UK courts in a case decided before Brexit.
The drafting here gives rise to uncertainty: What is meant by ‘of a kind’ – need it be the particular right relied on, or can it merely have been analogous to such a right? What does ‘recognised’ mean in this context – need it be part of the ratio or is an obiter dictum sufficient? What if it was implicit that the right existed, but without any express recognition? A narrow construction could lead to very arbitrary and unfair results.
Fourth, clauses 5(1) and 5(2) provide that the principle of the supremacy of EU law ‘continues to apply on or after exit day … [to] any enactment or rule of law passed or made before exit day’ but ‘does not apply to any enactment or rule of law passed or made on or after exit day’.
As regards pre-Brexit legislation, uncertainty arises in the application of supremacy because the hierarchy of EU law, and its harmony, are disrupted by the Bill’s other provisions. For example, as discussed above, clause 3 prevents the transposition of an EU regulation whose ‘effect’ is reproduced in a UK SI – but can that EU Regulation be ‘revived’ in UK law for the purposes of the principle of supremacy, ie to support an argument that the UK SI is deficient?
To take another example, the Explanatory Note, para. 97, states that ‘domestic law [passed before exit day] must be interpreted … in the light of the wording and purpose of relevant directives’. But the directives’ text is not to be transposed into UK law (only the ‘previously recognised’ rights is preserved by clause 4). The Explanatory Note suggests that the text of the directive can be ‘revived’ for the purposes of supremacy – but how can that be if the Directive itself has no legal force?
To take a third example, would the rights transposed under clause 4 enable the UK courts to adjudicate on the vires of the EU to make the regulations transposed under clause 3, or are such questions now closed?
As regards post-Brexit legislation, clause 5(3) provides that ‘supremacy’ can apply to post-exit day legislation if ‘the application of the principle is consistent with the intention of the modification’. The position for post-Brexit primary legislation (ie Acts) will be straightforward – they will be supreme. But clause 5(3) appears to leave the door open for a post-Brexit SI to be ‘trumped’ by a pre-exit transposed Regulation. Whether it does or not will turn on the intention of the modification. Which gives rise, once again, to uncertainty.
‘Ooh this uncertainty, is taking me over’ (Portishead, Over)
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4 August 2017