One of the most controversial aspects of the Bill is the disapplication of the Charter of Fundamental Rights.
Clause 5(4) of the Bill states ‘the Charter of Fundamental Rights is not part of domestic law on or after exit day’. Explaining clause 5(4) on the first day of the Bill’s Second Reading, the SSExEU said:
Dominic Grieve MP responded:
The SSExEU responded:
The SSExEU’s promised letter is here, and it makes for interesting reading.
In summary, as set out in the letter, the Government’s position is that no substantive rights will be lost, because:
What will be lost, the letter explains, is the right to claim incompatibility with the general principles of EU law, and the ‘right of the courts to strike down administrative action or legislation (including primary legislation) on these grounds’ (Bill, Schedule 1, para 3(1); Letter, paras 8 and 11). The letter states (para 11):
Three interesting points arise in this context.
The first is that the loss of the right to challenge on the basis of the general principles of EU law (see Bill, Schedule 1, para 6) is clearly the loss of a substantive right in UK law – a right without a remedy is no right at all. However, as Grieve pointed out in the debate, that right is lost, not as a consequence of clause 5(4) which prevents the transposition of the Charter, but as a consequence of Schedule 1, para 3(1). Therefore, while the SSExEU could, correctly, assert that ‘the absence of the charter will not affect the substantive rights available in the UK’, he neglected to mention to the House that that mischief was achieved by another part of the Bill.
The second point is whether a distinction is to be drawn, in the Bill, between EU rights and EU general principles. As a matter of EU law, it is well established that ‘fundamental rights form an integral part of the general principles of the law, the observance of which is ensured by [the CJEU]’ (see Wachauf at para 17) – so ‘EU general principles’ includes ‘EU rights’.
The Bill does not define the ‘general principles of EU law’. The closest we get are the specific mention of the EU general principle of supremacy in clause 5(1), and clause 6(7), which defines ‘retained general principles of EU law’ as:
If the Bill uses ‘general principles’ as EU law understands it, then when the Bill speaks in Schedule 1, para 3 of no right of action being available based on incompatibility with ‘EU general principles’, it must mean that no right of action is available based on EU general principles and EU rights.
But that would have the effect of ‘neutering’ clause 4(2) of the Bill which provides that EU rights which have been recognised by the CJEU prior to ‘exit day’, plus pre-exit CJEU case law, are transposed into UK law. Those EU law rights would be transferred, but no right of action could be founded upon them. If that is the case, then, in a much wider sense, the SSExEU is being misleading in saying that no substantive rights are affected by the Bill.
An alternative reading of the Bill is that the draftsman is seeking to discriminate between ‘(transposed) EU rights’ and ‘EU general principles’, and that a right of action remains on the former but is disapplied in respect of the latter. (Certainly, the letter refers only to ‘incompatibility with the general principles’, and not to ‘general principles or rights’.) Absent a definition of ‘EU general principles’, however, it is not clear to us where the line should be drawn between rights and principles.
Third, and related to the previous point, the letter states that ‘the ability for our courts and tribunals to disapply primary legislation is – except in the context of EU law – alien to our legal system’ and goes on to suggest removing this ability is consistent with restoring the sovereignty of Parliament.
This seems to us to ignore the live role of ‘the rule of law’ in the UK’s constitution. Of course, on a traditional (Diceyan) exposition of Parliamentary sovereignty, Parliament can pass whatever legislation it chooses (even laws contrary to the rule of law), and that legislation would be applied by the courts. However, there is judicial support for the proposition that while the supremacy or sovereignty of Parliament is still the general constitutional principle, the principle is not absolute and the Supreme Court could decide not to follow it in certain circumstances (see further discussion here and R (Jackson) v Attorney General  1 AC 262, per Lord Steyn at para 102):
It is therefore going too far to say that the disapplication of primary legislation is ‘alien to our legal system’. It remains to be seen whether, as mooted previously, post-Brexit, with the option of a referral to the CJEU gone, the UK’s Supreme Court might flex its inherent power to do so.
Written with Aaron Nelson
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