In our last post we explained that the repeal of the European Communities Act 1972 (the ECA) would end the authority of EU Law in the UK. But, because this would leave a large hole in the UK’s statute book, the GRB would seek to preserve and carry over (‘transpose’) into UK law the full body of EU law not already implemented in national law.
This post looks at a different consequence of that repeal, namely the end of the supremacy of EU law.
At present, by virtue of the ECA, s2(4) and the provisions of the Treaties which it applies, EU law is to be accorded supremacy over UK statute law, ie anything in our law which is inconsistent with EU rights and obligations must be modified or construed to avoid that inconsistency (judgment of Lord Bridge in the seminal case of Factortame (No 2)). This led the ECA to be described as a ‘constitutional statute’ (Laws LJ in Thoburn v Sunderland CC, better known as the ‘metric martyrs’ case), which meant that the ECA could not be impliedly repealed, and that a subsequent Act, which didn’t expressly repeal the ECA, could not override incompatible EU laws.
It seems relatively clear that, even if ‘transposed’ EU legislation will still have authority in the UK (by virtue of the provision of the GRB which re-enacts it as domestic legislation), it will not retain entirely its previously-identified supremacy.
As the Supreme Court put it in Miller (para 80):
The Government reflected this analysis in the GRB White Paper (para 2.19):
However, note that EU-derived law’s supremacy will be preserved in respect of ‘pre-exit law’ (White Paper, para 2.20):
The partial loss of this attribute of supremacy seems to mean that, for example, in the case of Workers’ Rights and equal pay (which example is specifically cited in the White Paper), the Government would be free to introduce, and Parliament to pass, new legislation which did not comply with the right to ‘equal pay’, but the interpretation of existing legislation (as being subject to and compatible with such rights) will be unchanged.
Unless, that is, the courts decided that the GRB (or other primary legislation passed to import EU laws or rights) was so significant as to justify granting to it the same status of a ‘constitutional statute’ (as was previously conferred on the ECA). If that was the case, then Parliament would have to expressly repeal that legislation (or elements of it) in order to pass new legislation which was incompatible with it. In effect, the position under the GRB would substantially mirror the position under the ECA.
Alternatively, the UK courts could go further still, granting ‘elevated’ or protected status to certain rights, eg the right to equal pay (whether granted under EU-derived legislation or otherwise). They could perhaps do so on the basis that the UK’s common law has developed to recognise inalienable ‘human rights’ during the course of its EU membership. What position would the Supreme Court take on such human rights (and its own powers) if a Conservative Government acted on its manifesto commitment to ‘consider’ the UK’s human rights legal framework, including the Human Rights Act, when the process of leaving the EU concludes’? Would the UK courts be willing to assume the mantle of the CJEU (or the US Supreme Court) and strike down legislation which is incompatible with such rights?
Written with Aaron Nelson