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27 September 2017

23: Great Repeal Bill – Just a-wrote me a letter

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:

‘[We] do not believe that it would make sense to retain the charter of fundamental rights. The charter applies only to member states when acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law, once we leave the European Union … [T]he charter catalogues the rights found under EU law that will be brought into UK law by the Bill. It is not, and never was, the source of those rights. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations that the UK remains party to – for example, the European convention on human rights … Let me be clear: the absence of the charter will not affect the substantive rights available in the UK.’

Dominic Grieve MP responded:

‘I understand my right hon. Friend’s point about the charter, because I agree with him that general principles and the charter should be identical – although that does raise the question of why, in those circumstances, the charter should go – but schedule 1 says quite clearly that after we have done this:
“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.”
He must agree that that means that the right of the individual to challenge on the basis of the principle of EU law – the law that will be imported into our law by the Bill – will no longer be possible. That is in our own courts – forget about the European Court of Justice. That seems to me a marked diminution in the rights of the individual and of corporate entities.’

The SSExEU responded:

‘I am afraid that my old and dear right hon. and learned Friend and I are going to have a difference of opinion. We will put in the Library a letter on this specific issue … But the simple truth is that these rights … have a whole series of origins. Some are from British common law, some are from EU law that we will bring in ourselves, and some are from the European convention on human rights … Why on earth we need an extra layer of declaratory law I do not know.’

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:

  • the Charter is merely declaratory of rights which exist elsewhere in UK law or EU law;
  • existing UK rights (eg equal treatment), including ‘fundamental rights or principles’, are unaffected by Brexit (Letter, para 5; Bill, clause 5(5));
  • existing UK grounds of action (eg judicial review of secondary legislation and administrative action, which can lead to a quashing order; challenge to primary legislation under Human Rights Act 1998, leading to declaration of incompatibility and review by Parliament) are unaffected by Brexit (Letter, para 5); and
  • the general principles of EU law (eg supremacy of EU law) are transposed for interpretative purposes only (Letter, para 10; Bill, paras 5 and 6(3); Schedule 1, para 2);

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):

‘The ability for our courts and tribunals to disapply primary legislation is – except in the context of EU law – alien to our legal system. Removing the ability of courts and tribunals to disapply primary legislation on the grounds of incompatibility with the general principles is therefore consistent with the way in which domestic law operates and an appropriate step in disentangling UK law from EU law and restoring sovereignty and control to Parliament.’

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:

‘… the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they —
(a) relate to anything to which section 2, 3 or 4 applies; and
(b) are not excluded by section 5 or Schedule 1,
(as those principles are modified by or under this Act or by other domestic law from time to time) …’

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 [2006] 1 AC 262, per Lord Steyn at para 102):

‘In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the…Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’

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.

‘Lonely days are gone, I’m a-goin’ home, My baby, just-a wrote me a letter’ (The Box Tops, The Letter)
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Written with Aaron Nelson