Mike Gordon: Parliamentary Sovereignty and the Implementation of the EU Withdrawal Agreement (Part II)

Editors’ note: This is the second part of a two-part contribution. The first part can be found here.

Part one of this blog post considered the constitutional challenge potentially posed by the commitment in the Phase One Joint Report that the UK Parliament will enact a Withdrawal Agreement and Implementation Bill to give effect to the citizens’ rights provisions in the EU Withdrawal Agreement – and that this will ‘prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future’ [36]. It outlined, first, an alternative approach to parliamentary sovereignty – the ‘manner and form’ theory – and, second, a contemporary pattern of legislative activity, which demonstrate that there is both a conceptual understanding of legally unlimited law-making power and evidence of constitutional practice which suggest that the UK Parliament could indeed lawfully enact a statutory ‘express repeal requirement’. Building on this, part two of the post challenges an alternative approach rooted in the idea of ‘constitutional statutes’, before addressing some of the implications of Parliament enacting such a clause.

Beyond ‘Constitutional Statutes’

While considering a number of ways of implementing the commitment made in the Phase One Joint Report, Mark Elliott begins by suggesting that ‘whether the Withdrawal and Implementation Bill ought to be taken to invest post-Brexit citizens’ rights with priority over (other) domestic law would turn upon whether the courts were prepared to treat the Bill as a constitutional statute’. Indeed, although Elliott certainly acknowledges that other approaches are available, including a ‘manner and form’ approach which recognises that ‘it may be possible for Parliament to stipulate, for example, that the provisions in the Withdrawal and Implementation Bill conferring effect and priority upon citizens’ rights are not to be overridden by other legislation unless such other legislation uses express language’, even in such circumstances the ‘constitutional statutes’ case law continues to cast a long shadow:

‘It follows that if the Withdrawal and Implementation Bill were to make such a stipulation, it cannot be taken for granted that such a stipulation would take effect unilaterally, independently of judicial evaluation of whether the legislation containing it is a constitutional statute. And, for reasons mentioned above, it is not certain, if it were to be concluded that the legislation was a constitutional statute, that it would thereby become vulnerable only to express repeal, as distinct from being highly resistant to repeal by implication.’

Not only, then, does a ‘constitutional statutes’ analysis suggest that it is ultimately for the courts to decide whether it is possible for Parliament to legislate to implement the commitment made by the Government in the Joint Report, it also indicates that a legislative attempt to establish an ‘express repeal requirement’ might be open to judicial dilution.

Of course, any debate about the relevance to UK public law of the idea of a judicially defined category of ‘constitutional statutes’ which are attributed special legal status by the operation of the common law, extends far beyond this specific context. The implications (and indeed the authority) of this uncertain and inconsistent line of case law, running from Thoburn through HS2 and perhaps on to Miller, are open to challenge. For better or worse, it is also a concept which, at least in superficial terms, may have passed into the political mainstream. However, the argument of Geoffrey Marshall, made in the aftermath of the Thoburn case, that the idea of ‘constitutional statutes’ had the potential to ‘inject an unwelcome element of uncertainty into our public law’ now seems especially prescient.

After evaluating the different possibilities, Elliott ultimately concludes that ‘it is not clear… that the UK constitution is capable of accommodating the undertaking made in the Joint Report’. Yet while this conclusion is understandable, given we are dealing with major shifts in fundamental constitutional principles, and nothing should be taken for granted, I think we can be more confident that a commitment to establish a legislative ‘express repeal requirement’ could be delivered. But rather than take as our starting point an analysis of how the judges might respond to what Parliament has done after the fact, this requires us to focus on how the sovereign Parliament defines the scope of its legislative sovereignty through the way it exercises that power. Building on the pattern of activity charted in part one of this post (which focused in particular on the EU Act 2011 and recent devolution legislation) if Parliament decides to exercise its sovereign power to author a statutory requirement that the Withdrawal Agreement and Implementation Bill could only be repealed by express words, it would be a remarkably bold court that concluded this was not constitutionally possible. It would also be a court which was arguably overreaching, to interfere with Parliament’s self-definition of its legislative sovereignty.

Parliamentary Sovereignty in Political Context

There would also – as Elliott notes – be obvious political force underpinning such a legislative provision. The UK needs to honour the commitments made in the Withdrawal Agreement, and needs to be seen by European partners to be honouring those commitments – especially if there is to be (enhanced) good faith in future negotiating phases. The explicit statutory protection of the rights incorporated into domestic law from the Withdrawal Agreement from ready displacement or repeal in the UK could be an effective way to serve this purpose. Yet we need not see the political imperatives in favour of such a legislative commitment as unrelated to the legal possibility of this undertaking being delivered. Indeed, this provides a rationale for Parliament interpreting its sovereign power in such a way as to permit the creation of an ‘express repeal requirement’ – legislative power would be used not to illicitly ‘bind successor Parliaments’, but to facilitate the achievement of an arguably desirable constitutional outcome.

The clarity provided by an explicit legislative commitment would also be a welcome virtue of this approach. Rather than again struggling through torturous ambiguity – as has been done for many years with s.2(4) of the ECA 1972, trying to discern its meaning and implications while hindered by the failure of that provision to address the question of the supremacy of EU norms in explicit terms – it would surely be better for Parliament to state directly the way in which and the extent to which the rights flowing from the Withdrawal Agreement are to be protected in domestic law.

Such clarity could have further implications, of course. The indication in the Phase One Joint Report that the Withdrawal Agreement and Implementation Bill would be subject only to express repeal would mark a further distinction from the ECA 1972:  the level of domestic protection offered to rights incorporated from the Withdrawal Agreement would arguably be higher than that offered at present to rights incorporated from EU law. Whereas the ambiguity of the ECA 1972 as regards the domestic supremacy of EU law left very much open the possibility that Parliament could legislate explicitly to depart from EU norms in specific circumstances, and expect this to be regarded as lawful from the perspective of domestic law, the ‘express repeal requirement’ envisaged in the Joint Report might appear to preclude the use of such ‘notwithstanding clauses’ in particular legal areas. If that reading of the commitment is correct, Parliament might not have the option of overriding Withdrawal Agreement rights or rules on a specific topic, while retaining a broader commitment to the terms of the Agreement itself. Instead, Parliament might need to repudiate the entire system of rights contained in the Withdrawal Agreement, applicable to UK and EU citizens alike, to circumvent the otherwise prevailing domestic legal effects of the Withdrawal Agreement and Implementation Bill. Such a shift in protection may not be the intention, of course, of what appears to be promised in the Joint Report – which is necessarily captured in broad terms – yet it could well be the effect of the introduction of a clear and unqualified statutory express repeal requirement.

Of course, much would depend on how any ‘express repeal requirement’ was drafted for inclusion in the planned Withdrawal Agreement and Implementation Bill. And, moreover, the very purpose of such a clause – as is clear from the Phase One Joint Report – is that it should never be used, with the Withdrawal Agreement rights remaining fully effective in UK law. Yet under these circumstances, and given the challenges of defining precisely in statute how an express repeal provision might function, whether the legislative drafters will yet feel entirely free of the hand of Dicey, and able to incorporate the legislative commitment envisaged in the Joint Report explicitly into the Bill, remains to be seen.

Nevertheless, I think we can be clear that Parliament can deliver this commitment in legislative form as agreed by the Government – it would not be an interference with, or denial of, parliamentary sovereignty if the legislature chooses to establish such protection. Instead, such a clause would provide further evidence of a key shift in our understanding of the nature of this fundamental constitutional norm, and in the orthodoxy associated with the doctrine of parliamentary sovereignty.

The starting point for understanding the constitutional possibility of the legislative creation of an ‘express repeal requirement’ in the Withdrawal Agreement and Implementation Bill should not be judicial accounts of ‘constitutional statutes’, but the manner and form theory of parliamentary sovereignty. This approach – which is rooted in contemporary constitutional practice – shows us that parliamentary sovereignty does not establish a legal barrier preventing the delivery of the Phase One Joint Report commitment to protect Withdrawal Agreement rights in domestic law. Rather, in enabling the UK to offer a legislative assurance to EU actors at a sensitive moment in the Brexit negotiations, it can be seen as evidence of the constitution functioning to facilitate significant political objectives, through – and without displacing – the operation of the doctrine of parliamentary sovereignty.

I am grateful to Adam Tucker for comments on a draft of this post.

Mike Gordon, Liverpool Law School, School of Law and Social Justice, University of Liverpool

(Suggested citation: M. Gordon, ‘Parliamentary Sovereignty and the Implementation of the EU Withdrawal Agreement (Part II)’, U.K. Const. L. Blog (18th Jan. 2018) (available at https://ukconstitutionallaw.org/))