With white smoke emerging from Berlaymont, and the UK and EU ready to move to Stage 2 of the Article 50 negotiations, it is time for UK public lawyers to start thinking very carefully about how norms of EU law can be enforced in a post-Brexit legal order.
Paragraph 36 of the Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union provides:
The UK Government will bring forward a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the Agreement. This Bill will make express reference to the Agreement and will fully incorporate the citizens’ rights Part into UK law. Once this Bill has been adopted, the provisions of the citizens’ rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.
More broadly, it now seems to be generally accepted that EU law will continue to apply, in whole or in part, in the UK for a transitional period after 29 March 2019. If so, there will have to be some domestic enforcement mechanism for EU-law norms, perhaps contained in legislation designed to implement a transitional period.
The difficulty is that the overriding supremacy currently enjoyed by EU-law norms in the UK legal system is unlikely to continue after Brexit. By virtue of its terms and its status as a ‘constitutional statute’, the European Communities Act 1972 imposes a duty on UK courts to interpret the law in accordance with EU-law norms, is immune from implied repeal and permits UK courts to ‘disapply’ domestic legislation that is inconsistent with EU-law norms. Although the matter is not free from doubt, because it raises important unresolved questions about British constitutional law, the current force and effect of EU-law norms in the UK legal system is probably contingent on Britain’s continued membership of the EU. Once Britain leaves, it will no longer have the obligations of an EU Member State. As such, the underpinning for the unique status that EU-law norms currently enjoy in UK law will disappear. In any event, the European Union (Withdrawal) Bill will, if enacted, repeal the 1972 Act (and the extent to which domestic legislation could nonetheless be disapplied after Brexit is profoundly uncertain).
This difficulty leads to a problem. In order to give sufficient domestic force to the Withdrawal Agreement and to EU law during a transitional period, Britain has to devise an enforcement mechanism. Passing a domestic statute would probably not be adequate: it would be subject to both express and implied repeal, which is unlikely to satisfy Europeans anxious about the implications of ‘taking back control’. Recreating the provisions of the 1972 Act would be hazardous, because once Britain’s EU membership ceases, the alchemy performed by the interaction of the 1972 Act and EU law will also cease. Moreover, keeping the 1972 Act on life support might raise the hackles of fervent supporters of Britain’s departure from the European Union.
An appreciation of these unfortunate realities led me and my colleagues, Kirsty Hughes and Kenneth Armstrong to propose in a recent working paper, Brexit and EU Nationals: Options for Implementation in UK Law, to adapt the mechanisms contained in the Human Rights Act 1998.
The remedial provisions of the Human Rights Act 1998 of greatest interest for present purposes are contained in sections 3, 4 and 6:
3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
4(2) If the court is satisfied that [a] provision [of primary legislation] is incompatible with a Convention right, it may make a declaration of that incompatibility.
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
By substituting a term such as “EU-law norm” (which will, obviously, have to be defined to the satisfaction of both sides to the Article 50 negotiations) for “Convention right”, these mechanisms could be adopted to give heightened domestic protection to the Withdrawal Agreement and to EU law during a transitional period.
Section 6 ensures that any administrative action inconsistent with the Convention is ultra vires public authorities.
Section 3 has justly been described as imposing on the courts an “interpretative obligation…of an unusual and far-reaching character” (Ghaidan v Godin-Mendoza  2 AC 557, , per Lord Nicholls of Birkenhead). In general, as long as the courts do not use section 3 to “adopt a meaning inconsistent with a fundamental feature of legislation” or to “make decisions for which they are not equipped” (ibid., ), they have significant scope to vindicate the rights protected by the Human Rights Act 1998. A similar obligation in legislation domesticating the Withdrawal Agreement and/or providing for a transitional period would be very important in construing subsequent legislation and would ward off the threat of implied repeal to a significant extent. Indeed, there are clear family resemblances between the interpretive obligation imposed by section 3 and the duty of consistent interpretation that is a core feature of EU law (Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89)  ECR I-4135, 4159; see Godin-Mendoza, , )
Where a court pushes up against the interpretative boundaries of section 3, it can issue a declaration of incompatibility. Although a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given” (Human Rights Act 1998, s. 4(6)(a)), it triggers the remedial power contained in section 10. Pursuant to section 10(2), “[i]f a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”, in accordance with the procedures set out in Schedule 2. This is not the automatic disapplication of conflicting statutory provisions from which EU-law norms currently benefit. But it nonetheless would allow Parliament or Ministers to quickly remedy any deviations from the Withdrawal Agreement or EU-law norms during a transitional period.
Using versions of sections 3, 4, 6 and 10 of the Human Rights Act 1998 would give significant additional protection to the Withdrawal Agreement and, in a transitional period, EU law, as a matter of domestic law. In the first place, all domestic legislation would be interpreted, so far as possible, to protect the EU-law norms, including the rights of EU nationals. In the second place, a fast-track remedial procedure would exist by which any legislation infringing relevant EU-law norms could quickly be amended.
It is true that the smooth operation of this machinery requires political actors to respond in good faith to court judgments. Would British politicians have the incentives to do so post Brexit, in a potentially febrile political environment? This is impossible to predict in advance. But it might be possible to provide, in the Withdrawal Agreement or in another document binding in international law, that the EU would be able to take retaliatory measures against the UK in the event that Parliament or Ministers did not move swiftly to use the remedial machinery put at their disposal. Moreover, as the old adage has it, half a loaf is better than none at all: whereas recreating the 1972 Act, or putting it on life support, might not work at all, it is possible to state with some confidence that the machinery of the 1998 Act can be adapted to deal with the Withdrawal Agreement and transitional period.
Paul Daly is Senior Lecturer in Public Law at the University of Cambridge and the Derek Bowett Fellow in Law at Queens’ College, Cambridge. The paper Brexit and EU Nationals: Options for Implementation in UK Law can be downloaded from SSRN. Thanks to Professor Alison Young for comments on a previous draft.
(Suggested citation: P. Daly, ‘EU Law in the UK after Brexit: EU Nationals’ Rights and a Transitional Period’, U.K. Const. L. Blog (15th Dec. 2017) (available at https://ukconstitutionallaw.org/))