Earlier in the year, I posted on the importance of Parliament legislating to provide a new ‘constitutional instruction’ to national courts to replace that currently set out in the European Communities Act 1972 (ECA) and offer clear guidance on judicial interpretation post-Brexit (see here). The European Union (Withdrawal) Bill provides domestic courts with that instruction as part of its effort to prepare the UK legal order for the challenges of leaving the European Union. This second post reviews the terms of that instruction and reflects on the scope that it would afford national courts to shape the development of domestic law post-Brexit.

In summary, the terms of the replacement instruction to UK courts reflect the Bill’s overarching ambitions: to preserve (much of) the existing legal framework post-Brexit whilst simultaneously empowering domestic actors to forge new paths for the UK once it leaves the EU legal order. What is rather striking (and constitutionally significant) is the extent to which the Bill proposes to delegate responsibility to national courts to resolve critical issues, including, first and foremost, determining the status of existing and future judgments of the Court of Justice within the UK legal order law post-Brexit. Delegating such matters to national courts without meaningful conditions is inherently problematic. It places considerable strain on domestic judges and risks politicising further the role of domestic courts in the Brexit process.

The new interpretative instruction

Clauses 1-6 and Schedules 1 and 5 of the Withdrawal Bill contain the key statements on the role of domestic courts within the national legal order following the UK’s departure from the EU. Clause 1 provides for the repeal on ‘exit day’ of the existing instruction to national courts set out in s2 and s3 of the European Communities Act (discussed in my earlier post). Clauses 2-4 of the Bill govern the transposition into national law on exit date of the present EU acquis in the form of ‘retained EU law.’ Clause 5, together with Schedule 1, outline specific parts of the EU acquis that are to be excluded from incorporation as retained EU law. This includes, among other things, the EU Charter of Fundamental Rights.

Clause 6 deals expressly with the interpretation of retained EU law. With the aim of ensuring continuity post-Brexit, Clause 6(3) of the Withdrawal Bill instructs national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The explanatory notes add further important detail here, outlining that the new instruction to apply the pre-exit case law of the Luxembourg Court is intended to incorporate into domestic law the EU Court’s particular approach to judicial reasoning – which, unlike its national equivalent, is highly purposive in character. The effect is to preserve much of the practical force of s3 ECA, which presently mandates that national courts reason as ‘European courts’ to the extent that they are engaged in the interpretation of Union law. The Withdrawal Bill also provides for the transposition into domestic law of the supremacy principle. Accordingly, domestic courts are directed to set aside any provision of domestic law enacted on or prior to exit day (including primary legislation) to the extent that it conflicts with the demands of retained EU law. The above instructions are also to apply mutatis mutandis where retained EU is modified post-Brexit (e.g. through the exercise of delegated powers) where domestic courts consider this consistent with the intention of the relevant modifications (Clauses 5(3) and 6(6)).

The Withdrawal Bill also anticipates significant changes to the current instruction under the ECA. More precisely, s6(1) will end the Court of Justice’s jurisdiction over the interpretation of Union law within the UK legal order. From exit day onwards, future judgments of the Court of Justice will no longer be binding on domestic courts. National courts will also no longer be able to refer questions concerning the interpretation of Union law to the Court of Justice. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court (and High Court of the Justiciary in specific circumstances) for the Court of Justice when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (Clause 6(5)). The Withdrawal Bill also designates the interpretation of retained EU law a question of law (Schedule 5, Part 2, Clause 3). That designation is necessary to facilitate appeals to the UKSC (and High Court of the Judiciary) in the absence of any replacement system of domestic preliminary references in the Withdrawal Bill.

What scope does the replacement interpretative instruction afford national courts to influence legal developments post-Brexit?

The revised direction to national courts establishes a radically different, but potentially far-reaching role for national courts in the development of domestic law post-Brexit. Nowhere is this clearer to see than in s6(2) of the Withdrawal Bill, which directs national courts on the domestic status of EU Court judgments on exit day. That provision facilitates the preservation of links between the UK and EU legal orders post-Brexit and, crucially, entrusts domestic courts with an important discretionary power to determine the nature of that connection. More precisely, it outlines that,

‘A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate’ (emphasis added).

Although unambiguous on the non-binding nature of future decisions of the Court of Justice on exit day, s6(2) affords domestic courts – under the leadership of the UKSC – a broad discretion to foster continued links with the EU legal order post-Brexit. The wording of s6(2) displays a strong ‘self-judging’ character. Under that Clause, it is for national courts to determine the appropriateness of maintaining future links with the Union legal order (e.g. when interpreting retained EU law in both its unmodified and modified form). This represents a significant delegation of responsibility to domestic judges. It is unequivocally more open-textured than the direction given to UK courts in other substantive areas; for example, pursuant to s3 Human Rights Act 1998. The latter provision pre-empts UK courts from making unilateral determination regarding the appropriateness of interpreting domestic law in light of the incorporated Convention rights. On the contrary, it ties the hands of national judges by mandating that they read domestic law in accordance with those rights without regard to their views on the appropriateness of doing so.

Significantly, the discretion afforded to national courts in the Withdrawal Bill with regard to the interpretation of retained EU law cuts both ways. In the first instance, and as noted above, the UKSC and High Court of the Justiciary are expressly empowered to depart from previous decisions of the Court of Justice where either court considers it appropriate to do so. In addition, Clause 6(3)(b) also directs national courts to consider the framework of Union competences when interpreting retained EU law. In more precise terms, domestic courts are instructed to have regard to the limits, immediately before exit day, of EU competences when ruling on the validity, meaning and effect of retained EU law. At first sight, this instruction may appear relatively innocuous. It could be read as simply emphasising the need to consider the nature and limits of Union competence as they stood on exit day when interpreting retained EU law. However, Clause 6(3)(b) is also open to a more dynamic interpretation. Specifically, that Clause is capable of being be read as giving national courts an additional power to set aside (as a matter of domestic law) previous decisions of the Court of Justice where these are considered incompatible with the limits on Union competences under the EU Treaties as they stood immediately prior to exit day.

Read in that way, Clause 6(3)(b) would provide a new legal basis for domestic courts to address concerns regarding the constitutionality (as a matter of EU law) of some of the Court of Justice’s previous interpretative choices. These concerns feature prominently in judgments such as G1 v Secretary of State for the Home Department and Pham v Secretary of State for the Home Department (on the scope of Union competence to determine the acquisition and loss of Member State nationality) and R (on the application of HS2 Action Alliance Limited) v The Secretary of State for Transport (on the scope of Union competence to review domestic parliamentary procedures). In both sets of cases, national judges expressed considerable discomfort with the Court of Justice’s specific conclusions on the reach of EU law into the UK legal system. This is particularly visible in the first set of judgments on Member State nationality in which national judges strongly criticised the Grand Chamber’s ruling in Rottman v Freistaat Bayern that the acquisition and loss of that status fell within the scope of Union law.

Importantly, the Withdrawal Bill makes it clear that Clause 6(3)(b) would not establish any new right to challenge the validity of retained EU law before domestic courts on the grounds that specific judgments of the Luxembourg Court strayed beyond the limits of Union competences as defined in the EU Treaties (Schedule 1, Clause 1(1)). However, it is possible that domestic courts could opt, by their own motion, to use that Clause to make important adjustments to the case law of the Court of Justice when requested to rule on the validity, meaning and effect of retained EU law. To do so, would open up an additional basis to facilitate judicial revision to retained EU law post-Brexit – alongside the UKSC’s and High Court of Justiciary’s more general competence to overturn judgments of the Court of Justice pursuant to Clause 6(5). Significantly, unlike that latter competence, the instruction to review EU Court decisions with regard to Union competence under the EU Treaties in Clause 6(3)(b) is not reserved to the UKSC and High Court of Justiciary. Thus, it could afford inferior domestic courts greater influence in the interpretation of retained EU law.

Concluding thoughts: In (domestic) courts we trust

The European Union (Withdrawal) Bill’s express provision for a new constitutional instruction to domestic courts in place of s2 and s3 of the ECA is a welcome development. The repeal of that Act without any replacement interpretative instruction to UK courts would amount to a dereliction of Parliament’s duty to prepare the UK legal system for life outside the European Union. Legislating to nationalise the EU acquis on exit day and, relatedly, to establish delegated powers to enable that new body of law to be subsequently amended, is only one dimension of the exit process. UK courts also need fresh instruction regarding the interpretation of retained EU law. Without that, domestic courts would be left to manage the application of this new corpus of domestic law without much sense of its place within the national legal order and, equally, its relationship with pre-existing (and future) judgments of the EU Court of Justice.

The Withdrawal Bill provides some clarity on these key issues. As a review of its key provisions confirms, the new instruction anticipates a radically different, but powerful role for national courts in the development of UK law post-Brexit. It is, of course, too early to say how national courts would react to this new instruction should it enter into force. However, what is beyond doubt is that, in its current form, the replacement direction in the Withdrawal Bill proposes to delegate considerable power to domestic courts. Most strikingly, national courts (and the UKSC in particular) can expect to be required to make independent judgments on the appropriateness of maintaining future links between UK and EU law beyond exit day. As a panel of former senior judges highlighted to the House of Lords EU Justice Sub-Committee last week, the delegation of responsibility to national courts without further conditions carries obvious risks. Leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising their institutional role in the Brexit process – resulting, potentially, in further regrettable attacks on the integrity of UK judges.

Sharpening up the terms of the current replacement constitutional instruction in the Withdrawal Bill would certainly help to reduce the risks of judicial politicisation. However, as the Bill makes its way through Parliament, the spotlight remains firmly centred on other key issues, such as the scope of the Bill’s proposed framework of new delegated powers and its impact on the UK devolution settlement. Mirroring that trend, the growing list of amendments to the Bill (as of 21/11/17) is largely silent on the topic of the terms of the Bill’s revised legislative direction to domestic courts. The amendments that touch on judicial matters are concerned principally to overturn the Bill’s exclusion of specific rights of action, including the Francovich damages remedy and the right of action for failure to comply with general principles of Union law. These are unquestionably important issues, but so too is ensuring that domestic courts have a sufficiently clear steer from Parliament on what is expected of them as the UK embarks on life outside the European Union. Of course, that assumes a degree of political consensus on what Brexit actually means beyond the platitude that ‘Brexit means Brexit.’ Regrettably, that remains elusive at this point in time.

Thomas Horsley (@ThomasHorsleyEU) is a Senior Lecturer in EU law at Liverpool Law School. His new monograph, examining the role of the Court of Justice as an institutional actor in EU integration, will be published by Cambridge University Press in early 2018.

(Suggested citation: T. Horsley, ‘In (Domestic) Courts We Trust: The European Union (Withdrawal) Bill and The Interpretation of Retained EU Law’, U.K. Const. L. Blog (27th Nov. 2017) (available at https://ukconstitutionallaw.org/))