Last week, Lord Sumption delivered the majority decision of the Supreme Court on Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs: Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah. The case would have been heard in December of last year, but for the small matter of Miller, which caused the hearing to be moved to June of this year. Brexit and Miller, however, do not only seem to have affected the timing of the hearing. They have also affected its importance. What might have been originally anticipated as a potentially defining moment – where the Supreme Court confirmed that the EU’s Charter of Fundamental Rights and Freedoms could be used as a stand-alone cause of action to disapply primary legislation and explained how this could be achieved – was translated into an almost blasé statement by the court that ‘a conflict between EU law and English domestic law must be resolved in favour of the former, with the latter being disapplied; whereas the remedy in the case of inconsistency with Article 6 of the Human Rights Convention is a declaration of incompatibility.’ What might once have seemed controversial has become run of the mill. What has led to the casual acceptance of ‘disapplication’ of a UK statute; and what will happen to disapplication – and the Charter – post-Brexit?

I mentioned the Charter once, but I think I got away with it…

Ms Benkharbouche and Ms Janah are both Moroccan nationals working in foreign embassies in London. Ms Benkharbouche was working as a housekeeper and cook to the ambassador at the Sudanese Embassy, and Ms Janah as a ‘domestic worker (Diplomatic)’ at the Libyan Embassy. Both claimed unfair dismissal, that they had not been paid the minimum wage, and a failure to apply with the provisions of the Working Time Regulations 1998. In addition, Ms Janah complained of discrimination and harassment. Most importantly, their complaint of a failure to comply with the provisions of the Working Time Regulations brought them within the scope of European Union law, the Working Time Regulations implementing the EU’s Working Time Directive.

Both faced similar difficulties in protecting their employment rights in the UK due to the State Immunity Act 1978. Whilst section 4 provides that there is no immunity for contracts of employment with an individual in the UK, where the work carried out by that individual will be ‘wholly or partly’ in the UK, section 16 (1)(a) makes it clear that ‘section 4 does not apply to proceedings concerning the employment of members of a mission’ i.e. embassy staff. Moreover, Ms Janah was neither a national of the UK nor habitually resident in the UK when her contract of employment was made, meaning that section 4(2)(b) applied, granting immunity to the embassy for her contract of employment. The main issue before the Supreme Court was to determine whether the 1978 Act breached Article 6 ECHR and, given its similar scope, Article 47 of the EU Charter, which protect the right to a fair hearing before an independent and impartial tribunal. The European Court of Human Rights regards Article 6 as breached whenever a case is dismissed for reasons other than an assessment of its merits. The House of Lords, however, has previously concluded that Article 6 is not breached when a court refuses to hear a case because it has no jurisdiction.

After a long analysis of international law, the Supreme Court concluded that there was no requirement of customary international law that UK courts had no jurisdiction to hear cases involving the employment of non-UK nationals by foreign embassies based in the UK where the employees in question were not carrying out inherently governmental or sovereign acts. Therefore, there was no need to decide between the competing views of the House of Lords and the European Court of Human Rights. Article 6 applied because both cases had been dismissed for reasons other than the merits of whether employment law rights had been breached. A breach of Article 6 entailed a breach of Article 47. Therefore, the 1978 Act could be disapplied for incompatibility with EU law and both applicants could now pursue their cases before an Employment Tribunal.

Both claimants have waited a long time for their case to be resolved by the Supreme Court – Ms Janah starting her claim in April 2012. Both cases were decided by the Employment Appeal Tribunal in 2014, the Court of Appeal in 2015 and the Supreme Court in 2017. During that time, the fortunes of both the EU’s Charter and of the disapplication of legislation have changed almost beyond recognition.

On 19 November 2014, the then Home Secretary, now Prime Minister, Theresa May, stated that the Government’s view was that the EU Charter was ‘declaratory only’ and did not apply to the UK. Whilst that may have been the view of the Government three years ago, it is hard to reconcile that position with the later decision of the Court of Appeal in Benkharbouche in 2015, let alone this decision of the Supreme Court in 2017, not to mention the many instances in which first instance courts have used the Charter to disapply legislation, discussed in an earlier blog post by Merris Amos. It is perhaps unsurprising, then, to find increasing awareness and acceptance by the Government of the legal effect of the Charter in UK law. This culminated in the witness statements of Michael Gove MP, then Secretary of State for Justice and Lord Chancellor, to the Justice Sub-Committee of the House of Lords’ EU Committee, accepting both that the Charter can be relied upon in UK courts when the claim is within the scope of EU law, and that domestic legislation which contradicts the Charter could be disapplied. Given this emerging acceptance, it seems hardly surprising that the Supreme Court felt able to pronounce both that the Charter could be relied upon in UK law and that, in contrast with a breach of Convention rights, this meant that the provisions of the State Immunity Act 1978 could be disapplied, allowing both claimants to pursue the aspects of their claims which fell within the scope of EU law before an Employment Tribunal.

The European Union Withdrawal Bill appears to bring about yet another reversal of fortune for the EU Charter; from being originally denied any legal affect, to an acceptance of its application in UK law, to a bald statement in clause 5(4) of the Bill that it ‘is not part of domestic law on or after exit day’. However, the same is not true of the disapplication principle, although it can be difficult to work out the extent to which the principle of the supremacy of EU law survives Brexit and, in turn, the extent to which retained EU law can be used to disapply UK legislation. Clause 5(1) appears to remove the supremacy of EU law, stating that ‘the principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day’. However, Clause 5(2) preserves the principle of supremacy ‘so far as relevant to the interpretation, disapplication, or quashing of any enactment or rule of law passed or made before exit day’. In short, EU law preserved through the Withdrawal Bill can disapply legislation enacted prior to exit day; but cannot disapply legislation enacted after exit day. To add to the complexity, clause 5(3) will preserve the principle of the supremacy of EU law for any law which existed prior to exit day, which is modified post-exit day, but where the intention of the modification is to preserve the sovereignty of EU law. What would happen if Ms Benkharbouche and Ms Janah had brought their case post-Brexit? The answer is of interest because it helps shed light on the practical effect of the Withdrawal Bill and the status of what will be known as ‘retained EU law’ as regards other legislation.

Benkharbouche post-Brexit

As with any such post-Brexit crystal ball gazing, the answer is hard to predict and depends on a number of scenarios. First, we need to work out what will happen, if anything, to the Working Time Regulations 1998. These are examples of secondary legislation, enacted under section 2(2) of the European Communities Act 1972, in order to implement the UK’s obligations under the EU’s Working Time Directive. As such, they are an example of ‘EU-derived domestic legislation’ under clause 2(2)(a) of the Bill and, thus, an example of ‘retained EU law’ under clause 7 of the Bill. Whilst, prior to Brexit, applicants needed to show they were within the scope of EU law, presumably post-Brexit the supremacy of EU law applies to ‘retained EU law’. However, there is a problem in our scenario. Whilst the Working Time Regulations may be used to disapply legislation enacted prior to exit day, this is not how they were used in the Benkharbouche decision. We need to look elsewhere to determine whether, post-Brexit, Ms Benkharbouche and Ms Janah would be able to disapply the State Immunity Act 1978 and therefore plead their case that the Working Time Regulations had been breached.

Herein lies the main problem. The State Immunity Act was disapplied because of Article 47 of the Charter. As clause 5(4) of the Bill makes clear, the Charter has no application in domestic law post-exit day. So this cause of action is no longer open to the claimants.  However, this is not the end of the story. Because they may be able to rely on clause 5(5) of the Withdrawal Bill. This preserves ‘fundamental rights or principles which exist irrespective of the Charter’ – which appears to be synonymous with the fundamental rights which are recognised as general principles of EU law, which do exist irrespective of the Charter.  The Court of Justice of the EU has recognised the right to a fair hearing, based on Article 6 ECHR, as a general principle of EU law.

However, the preservation of fundamental rights irrespective of the Charter will not help the claimants. Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ (Schedule 1: paragraph 3(1)). This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. Moreover, paragraph 3(2) of Schedule 1 makes it clear that, post-exit day, a court, tribunal or public authority cannot ‘disapply or quash any enactment or rule of law or quash any conduct or otherwise decide that it is unlawful, because it is incompatible with any of the general principles of EU law’.

In short, post-exit day it will no longer be possible to rely on the Charter in UK law. But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche,  the stronger remedy currently found under EU law for protection of fundamental rights will disappear. They would only be able to obtain a declaration of incompatibility under section 4 HRA arising from the breach of article 6 ECHR. This, in turn, is not available to tribunals, but only to the high court and higher courts. Moreover, whilst it may place the Government or Parliament under political pressure to change the law, it does not provide the claimants with the ability to plead their case before an Employment Law tribunal: the State Immunity Act 1978 would continue to have legal force and effect under section 4 HRA.

The Death of Disapplication?

The Withdrawal Bill may seem to sound the death knell for disapplication. However, it is important to recognise that this only applies to the Charter and EU fundamental rights. Other areas of EU law, preserved as EU-derived law through clauses 2 to 5 of the Withdrawal Bill, can be used to disapply legislation enacted prior to exit day. Moreover, these provisions are to be interpreted in line with the case law of the CJEU prior to exit day, provided that they have not been modified post-Brexit (although the Supreme Court is not bound by ‘any retained EU case law’ (clause 6(4)(a))). As such, there  will be scope for retained EU law to be interpreted in line with EU fundamental rights, and to then disapply legislation enacted prior to exit day.

More broadly, we need to re-investigate why directly effective provisions of EU law can disapply legislation. Laws LJ famously suggested in Thoburn that, to the extent that directly effective EU law disapplied UK legislation, this stemmed from principles of English common law, which also determines the scope of parliamentary sovereignty, itself a principle of the common law. Whilst Miller confirmed the primacy of EU law over domestic legislation, it saw this as confirmed in section 18 of the European Union Act 2011, this having effectively been the case since 1973, when the European Communities Act 1972 came into force. Moreover, Miller regards the primacy of directly effective EU law as limited; ‘legislation which alters the domestic constitutional status of EU institutions or of EU law is not constrained by the need to be consistent with EU law’ as EU law only enjoys a status in UK law so far as this is allowed by the principle of parliamentary sovereignty. [67]

This seems to leave us with the current situation (before Brexit takes place) whereby directly effective provisions of EU law have primacy over UK legislation because of the provisions of the 1972 Act. Specifically these are the provisions of sections 2(1) and 2(4) of the Act, which require that all legislation be read and given effect subject to the principle of the primacy of directly effective law. As such, legislation which appears to contravene directly effective EU law that cannot be interpreted so as to be compatible with EU law, is to be given effect only ‘subject to’ directly effective EU law. This requires the courts to disapply legislation which contradicts directly effective EU law. Consequently, if disapplication is not dependent on EU law per se, but upon the wording of the provisions of the 1972 Act, it may be possible for disapplication to occur in the future; but only if this is provided for in legislation. This seems to be achieved in the Withdrawal Bill through the mention of the preservation of the supremacy of EU law, and through specific references to the ability to ‘disapply’ legislation enacted prior to exit day which contravenes EU-derived laws preserved through the Withdrawal Bill.

We may once have thought that this required complex mental gymnastics to accept that parliamentary sovereignty is not thereby compromised. Benkharbouche, and the Withdrawal Bill, appear to accept disapplication as standard. No challenge to parliamentary sovereignty arises as disapplication only applies to the extent that this is required by UK legislation. By disapplying legislation, courts are merely upholding the will of Parliament. This may be because ‘disapplication’ is not the same as ‘striking down’ or ‘quashing’ – although it may appear to have a similar effect. The former leaves the legislation intact. It is just not applied to the extent that it contradicts directly effective EU law/EU-derived laws. The latter implies that the quashed measure was never legally valid.  However we read ‘disapplication’ it continues to have a future post-exit day, and it may even be possible for it to apply beyond EU-derived laws were Parliament to legislate accordingly.

With thanks to Gavin Phillipson and Stephen Tierney for comments on an earlier version.

Alison L. Young, Professor of Public Law, Hertford College, University of Oxford and, from January 2018, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘Benkharbouche and the Future of Disapplication’, U.K. Const. L. Blog (24th Oct. 2017) (available at https://ukconstitutionallaw.org/))