Introduction

On 8 September 2017, Gordon Downie, wrote a most interesting and thought-provoking piece for this blog, in which he warned that Clause 4(2)(b) of the European Union (Withdrawal) Bill would keep EU Directives out of UK Law after Exit Day and in particular that this Clause “explicitly excludes rights etc, arising under EU Directives” with the result that the new category of Retained EU Law “excludes EU Directives” altogether.

Most respectfully, I think that Mr Downie’s reading of the Bill is slightly too restrictive when it comes to Directives.  However, before explaining the divergence in our readings, I will offer some general thoughts on Clause 4(2)(b).

Clause 4(2)(b)

I can’t help feeling that I somehow wished Clause 4(2)(b) into being, as, just before the publication of the Bill, I had adverted the Department for Exiting the European Union (“DEXEU”) to the fact that the Bill, as described in the White Paper, allowed Directly Effective rights in Directives, which were only declared Directly Effective after Exit Day (as often happens through litigation), to be incorporated into UK Law via (what is now) Clause 4(1).  To explain what I mean, if we take Clause 4(1) to mean that all Directly Applicable EU Law becomes part of UK Law on Exit Day, as was promised by para 2.4 of the White Paper (Clause 4(1) refers to s 2(1) of the European Communities Act 1972 (“ECA”), which allows Directly Applicable EU Law onto our statute book), then that would necessarily include any Directly Effective (and therefore ipso facto Directly Applicable) rights found to exist within an EU Directive, by (most likely) the Court of Justice, after Exit Day.  Since EU Law rights exist ex nunc, a litigant relying on the relevant provision of the Directive would have an extremely sound argument that said provision was always Directly Effective, including before Exit Day, and that therefore the right it contained already vested in him or her via the operation of s 2(1) of the ECA, such vesting surviving Exit Day via the operation of Clause 4(1).  This in turn meant that any inadvertent (or deliberate?) misimplementation of the Directive by the Government prior to Exit Day could be “corrected” after it as the non-implemented right, so long as later declared Directly Effective, would come tumbling after the implemented ones.  Thanks now to Clause 4(2)(b), only those rights already recognised prior to Exit Day survive it.

Of course, the “ex nunc argument” could in theory be mounted by litigants wishing to take advantage of any subsequent change in EU Law made by the Court of Justice, Directly Effective or not, on the grounds that the change was in the legislation all along.  Such unfortunately is the nature of civil law reasoning.  In civil law jurisdictions, “the fiction is still maintained that in performing [their interpretive] function the judge does not create law, but merely seeks and follows the expressed or implied intent of the legislator”: JH Merryman and R Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3^rd edn, Stanford University Press 2007) 56.  But the point here would be that Retained EU Law would be able to be amended or scrapped by Parliament, while the Directly Effective right, on the other hand, could not be.  Hence the need, from DEXEU’s point of view at least, for the future-proofing effect of Clause 4(2)(b).

Divergence in readings

I certainly agree with Mr Downie that the UK Laws by which Directives are implemented, thanks to the implementing power given to Ministers in s 2(2) of the ECA, survive Exit Day as Retained EU Law via Clause 2.  In Mr Downie’s example, then, although the Water Framework Directive itself does not survive, the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, for example (one of 110 domestic laws implementing the Directive here according to Eur-lex), made via s 2(2) ECA, does.

However, things may not be as bad as Mr Downie senses, as on my reading only those rights which have not been correctly implemented, such faulty implementation not having been judicially “perfected” before Exit Day, are excluded.  This in turn would mean that the implications for the devolution settlements which Mr Downie outlines, including post-Brexit inconsistencies as between the devolved territories, will hopefully not come to pass, or at least not in that way, assuming the Clause survives at all.  I hope that this at least provides a measure of reassurance.

Committee Stage

The story of Clause 4(2)(b) of the European Union (Withdrawal) Bill has taken another couple of twists with the tabling of two Amendments by MPs in the run-up to this week’s Committee Stage.

The first one, perhaps predictably, calls for the Clause to be scrapped.  That which DEXEU may have decided was a negative facet of the White Paper (whether before or after my own contribution!), and thwarted in the Bill itself, some backbench MPs inevitably regarded more positively, and wish to preserve.  This is an entirely reasonable position and it will be for Parliament to decide how to proceed.

The second Amendment relating to Clause 4(2)(b) is more complex, adding two new subsections to Clause 4.  It is tabled by many of the same MPs as the first, and therefore it is to be presumed that Clause 4(2)(b) and the two new subsections are not intended to coexist.

New subsection (5) also seems very reasonable.  In the past, in situations where the UK’s law was found by a UK court to be at variance with EU Law, but the UK Law concerned did not contain express instruction to deviate from EU Law, the convention was traditionally observed that the UK always acts to carry out her international obligations, and thus the deviation could not have been intentional and should be corrected: Macarthy’s Ltd v Wendy Smith [1979] ICR 785 (in particular Lord Denning at 789, where he reprised his own earlier dictum from Blackburn v Attorney General [1971] 1 WLR 1037 at 1040).  New subsection (5) extends this obligation to correct into the future.

With regard to its scope, the words “transpose” and “transposition” in the subsection, and the word “implemented” in the Member’s explanatory statement, imply that the focus is still solely on Directives, as was the case with the old Clause 4(2)(b).  However, the duty to correct could in theory be applied in relation to all EU primary and secondary law, and it should be debated whether the intention of those tabling the new subsection is in fact that it should be so applied hereafter.  The controversy here is that such a subsection, whatever its breadth, forces the UK to continue making amendments to the UK Statute Book, after Exit Day, in order to keep up with (some or all) evolving developments in EU Law.

Scrutinising new subsection (4), which is more problematic, three issues arise.  First, one wonders about its scope.  By not using the phrase “recognised by the European Court or any court or tribunal in the United Kingdom”, the new subsection widens the scope of the old Clause such that, after Exit Day, any EU obligation arising under a Directive, if not properly fulfilled in UK domestic law, should be so fulfilled, even if such an obligation does not give rise to a Directly or Indirectly Effective right.  Further, while the explanatory statement directly refers to Directives, the subsection is drafted in such a way that it could in theory extend to cover EU obligations arising under other types of instrument than just Directives.  Parliament may wish to investigate these two points.

Second, one wonders if subsection (4) is even needed in the presence of subsection (5).

Finally, third, one wonders if perhaps there is not a certain circularity about the way the new subsection is currently drafted.   One further wonders if perhaps the phrase “continue to” should not be excised, and if the phrase “immediately before exit day” should not be replaced by “it has in EU Law” or “was intended by the adopting institution or institutions” or “if provision had been made”.  Without these alterations, the phrase “shall continue”, if coupled with the phrase, “as immediately before exit day”, might simply lead to the status quo: if the EU obligation in question was not effective or enforceable in the UK before Exit Day, due to non-existent or faulty transposition, then that state of affairs would be set to continue after Exit Day too.

Conclusion

My original submission to DEXEU had sought to draw the Department’s attention to a certain category of rights which, despite being present in Directives, might actually be argued to enter UK Law via s 2(1) ECA and not s 2(2).  There is support for the proposition that rights which take Direct Effect must simultaneously become Directly Applicable too, after the date for the implementation of the Directive has passed, in the writings of Beljin, Temple Lang and Prechal.  If this is the case, it gives rise to two final thoughts.

Firstly, there would be no need for new subsections (4) and/or (5) if their only purpose is to import into UK Law Directly Effective rights, declared to be Directly Effective by (say) the Court of Justice after Exit Day, but, thanks to the ex nunc rule, deemed to have existed all along, as this importation would already have taken place by virtue of s 4(1) of the EU (Withdrawal) Act.  Thus, one suspects that the new subsections are intended to do more work than this, beyond Direct Effect, and maybe even beyond Directives too, and this needs to be clarified by Parliament, keeping in mind the abovementioned controversy.

Secondly, Directives are not only transposed and implemented, they are also applied.  This means that they can be misapplied, and the Court of Justice has held that in situations of State misapplication of a Directive too, individuals or companies may source their rights directly from the Directive (as long as the conditions for Direct Effect are fulfilled): Case C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325, [22] – [28].  If such rights are indeed Directly Applicable, as I argue, then they will also have entered UK Law on Exit Day via s 4(1) of the EU (Withdrawal) Act.  If it is decided that there is a need for the new subsections, thought might be given as to whether there should be a reference to application here as well.  If not, individuals or companies who wish to stand on an EU right in the face of (subsequently realised) misapplication by the UK may be stopped from doing things “the EU way”, once “the EU way” is known.

Richard Lang, Senior Lecturer in Law, University of Brighton and member of the EU Committee of the Law Society of England & Wales

(Suggested citation: R. Lang, ‘The European Union (Withdrawal) Bill: Clause 4(2)(b), a Reply to Downie and Further Reflections’, U.K. Const. L. Blog (15th Nov. 2017) (available at https://ukconstitutionallaw.org/))