affiliated to the International Association of Constitutional Law
The House of Lords Constitution Committee’s Report on the European Union (Withdrawal) Bill, HL Paper 69, is a valuable document, with many important insights and recommendations for improvements to the current version of the Bill. This comment relates solely to the Committee’s recommendations concerning the status of retained EU law in a post-Brexit world and supremacy. While the initial Bill is deficient in both respects, there are difficulties with the Committee’s recommendations, and there are, it will be argued, better ways to address the underlying problems.
Legal Status of EU Law Post-Brexit
The legal status of EU law within the UK legal order post-Brexit is fundamental, as recognized by the House of Lords’ Committee. It duly noted that ‘whether a law counts as primary or secondary legislation is of fundamental importance in the UK legal system’, (para. 39). However, the Bill, in its present form, says nothing about the issue.
The government’s approach was double-edged. Evidence tendered from the Department for Exiting the EU stated that EU law retained via clause 3 of the Bill should be regarded as sui generis, neither primary, nor secondary legislation, with a unique status in the UK legal hierarchy, (para. 42). Evidence tendered by the Solicitor General indicated that the government intended to use clause 17(1) to allow a Minister to decide whether, in a particular instance, EU retained law should be treated as primary or secondary legislation, (para. 67).
The Constitution Committee was rightly critical of both these rationales. In relation to the first rationale, the Committee noted that post-Brexit EU law would be domestic law, and that there was therefore no reason why it should not be treated in accord with traditional modes of domestic classification, (para 44). There would, moreover, be a plethora of problems if the classification of EU law as ‘sui generis’ or ‘unique’ were to be retained. In relation to the second rationale, the Constitution Committee dismissed the suggestion that the classification of EU law as primary or secondary legislation should reside at the discretion of a minister, stating that such a power would be ‘extraordinary and egregious’, (para. 68). The Constitution Committee’s preferred solution was to treat all clause 3 retained law as primary statute in a post-Brexit world. It felt that this was the optimal solution for the following reasons:
(i) It was not possible to distinguish between such measures, so as to be able to classify some as primary legislation and others as statutory instruments.
(ii) It would render such legislation more secure, in the sense that it could only be amended by later primary statute, or Henry VIII powers. Such legislation could not be amended or repealed pursuant to any statutory power to alter secondary legislation.
(iii) It would facilitate resolution of the supremacy issue, in the manner explained below.
The Constitution Committee’s approach is clearly preferable to the existing Bill. There are, however, five principal difficulties with the Committee’s approach to legal status, whereby all EU retained law is regarded as primary statute. First, it will lead to results that are constitutionally anomalous for EU law that is dealt with in part through clause 3 and in part through clause 2. The two areas are not hermetically sealed. To the contrary, they are intimately related for the following reason. EU legislation that takes the form of a directive will have been brought into UK law via the ECA 1972. It may be transformed into primary law, but most commonly it will be adopted as a statutory instrument via the ECA s 2(2). This is so even if the directive is in form and substance a legislative act enacted under Article 289 TFEU. However, all such directives are fleshed out through delegated and implementing acts enacted pursuant to Articles 290-291 TFEU, which will commonly take the form of regulations. These regulations will become part of UK law via clause 3. The Committee’s recommendation would then entail the following: the primary directive will continue to have the status of a statutory instrument under UK law, while the delegated and implementing acts made pursuant thereto will be invested with the status of primary legislation. This is contrary to constitutional orthodoxy in the UK or anywhere else. It will, moreover, lead to confusion for those who have to use the law. The difficulty set out here will affect all clause 3 measures that are delegated and implementing acts made pursuant to a directive.
Secondly, the classification of all clause 3 measures as primary statute has the consequence that such measures cannot be struck down under the HRA, nor are they amenable to common law judicial invalidation on non-HRA grounds. This was recognized by the Committee, which felt that it was an acceptable constitutional cost of the decision to invest all such measures with the status of primary statute. This is a matter on which opinion can clearly differ. It should, nonetheless, be noted that the limitation of judicial review will thereby attach to many thousands of measures that bear no affinity to primary statute in the UK, nor would they be regarded as legislative acts in the EU.
Thirdly, the reality is that it will be necessary to look behind the legal form of primary legislation given to clause 3 measures and recognize that many are delegated or implementing regulations enacted pursuant to a primary legislative regulation. The reason is as follows. The general principle is that if there is a clash between two pieces of primary legislation, priority is accorded to the later in time. The principle rests on sound constitutional foundations, reflecting as it does the assumption that the will of the more recent Parliament should prima facie be given preference in the event of a clash with that of an earlier Parliament. There are, however, difficulties with the application of this principle in the context of a schema whereby all clause 3 measures are invested with the status of primary legislation. It is axiomatic that an EU regulation that takes the form of a legislative act made under Article 289 TFEU will precede the delegated and implementing acts made pursuant thereto under Articles 290-291 TFEU. The resulting problem can occur in one of two ways.
(i) There is a clash between a delegated/implementing act and the primary regulation. All such measures are given the status of primary legislation and the former are accorded priority because they are later in time. This is clearly the wrong result. It can be avoided, but only by seriously qualifying the very assumption underlying the decision to invest all clause 3 measures with the status of primary legislation. Thus, the determination that the later ‘primary legislation’ would not, in this instance, take precedence over the earlier ‘primary legislation’ would be predicated on the substantive realization that the later measures were subordinate and secondary to the earlier measure.
(ii) There is a clash between a delegated/implementing act and the primary regulation, but it is decided that the former are not, for the purposes of UK law, later in time than the primary regulation, because all such measures were accorded the status of primary legislation under UK law at the same time. The clash between the measures must still be resolved. The sensible conclusion would be for this to be resolved in favour of the parent regulation, but this determination would, once again, be predicated on the substantive assumption that the delegated/implementing acts are not of the same importance as the parent regulation, notwithstanding the formal parity afforded to all such measures as primary legislation under UK law.
Fourthly, to regard all clause 3 measures as primary legislation will devalue the currency of such legislation as it has been regarded in UK political and constitutional tradition. The UK Parliament commonly enacts circa 40 primary statutes per annum, and a great many more statutory instruments. The same general ratios pertain as to the split in the EU between legislative acts and delegated/implementing acts. To flood the UK primary statute book with up to 10,000 primary statutes, the great majority of which are not, as judged by their substance, primary legislation, is not desirable.
Finally, the consequence of characterizing clause 3 measures as primary legislation is that they will be immune from change by secondary powers to amend secondary legislation. They will only be open to repeal or amendment by later primary legislation, or through a Henry VIII clause. This is regarded as a virtue by the House of Lords Committee. There is, however, a danger with this strategy. Exigencies of time mean that the government is unlikely to enact primary legislation to make the requisite changes to such measures. They will then deploy Henry VIII powers. The use of such powers is rightly frowned on, precisely because it gives the executive power to alter primary legislation through statutory instruments, with scant opportunity to oppose the change. If, however, the primary legislation that is altered through a Henry VIII clause is a relatively minor delegated or implementing act then use of the Henry VIII powers is unlikely to provoke constitutional outrage. To the contrary, it will be regarded as a legitimate method of effecting amendment or repeal. The consequential danger is that politicians thereby become inured to use of such powers, which will become the new norm for statutory change.
The difficulties concerning the legal status of EU law brought into UK law post-Brexit would be better addressed through the following new clause 4 in the Bill.
For the avoidance of doubt, direct EU legislation that was a legislative act enacted under Article 289 TFEU is deemed to be primary legislation when it forms part of domestic law on or after exit day.
For the avoidance of doubt, direct EU legislation that was a delegated act enacted under Article 290 TFEU, or an implementing act enacted under Article 291 TFEU, is deemed to be a statutory instrument when it forms part of domestic law on or after exit day.
A statutory instrument altering the preceding designation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
This approach has the following advantages:
(i) It provides certainty as to the legal status of EU law in the UK in a post-Brexit world. This is important for the ordinary citizen, lawyers, politicians, administrators and courts.
(ii) The assignation of legal status in the draft amendment would be easy to apply, since all clause 3 measures as enacted by the EU come with their status as legislative, delegated or implementing act firmly imprinted on the face of the measure.
(iii) The assignation of legal status coheres with the substance of such measures. The reality is that in the great majority of instances legislative acts enacted under Article 289 would be regarded as primary legislation under UK law; and in most instances delegated and implementing acts enacted pursuant to Article 290-291 TFEU would be characterized as statutory instruments. This is the core of the proposed amendment, with the possibility of altering this classification where it does not fit.
The Constitution Committee was also critical of provisions in the Bill concerning supremacy contained in clause 5. The essence of the approach in the Bill is that the principle of the supremacy of EU law does not apply to any enactment or rule of law made on or after exit day, but that it is still applicable to legislation made before exit day, with the consequence that pre-exit EU law will take precedence over pre-exit domestic law.
The Constitution Committee was critical of this approach in part because there were uncertainties as to the meaning of clause 5, and its scope of application. The principal critique was, however, that clause 5 rested on a conceptual error, in the sense that it was predicated on the concept of the ‘supremacy of EU law’ which only had meaning while the UK remained within the EU. The phrase was said to be a ‘fundamental flaw’ at the heart of the Bill, and retained EU law could not benefit from the supremacy principle when we leave the EU, (para. 89). The Committee’s preferred solution was to remove the existing clause 5 and deal with the issue through classification of all EU direct retained law as primary legislation, which would then be accorded priority in the event of a clash with earlier domestic law.
There is considerable force in the reasoning of the Constitution Committee, both with regard to uncertainties concerning the detailed meaning of clause 5 as presently formulated, and as to its problematic conceptual foundation grounded in the ‘supremacy of EU law’. There are, however, two points that should be made in this regard, one factual, the other legal. First, in factual terms, we need to keep the issue that is presently covered by clause 5(2) in perspective. Post-Brexit it is extremely unlikely that we are going to discover a closet full of inconsistencies between EU law and pre-existing UK law. This is in part because the UK has always been rather good at implementing EU law. It is in part because if there were such inconsistencies then it is very likely that they would have been the subject of a Commission enforcement action under Article 258 TFEU, or an individual would have raised the inconsistency before the UK courts, with the possibility of preliminary reference to the CJEU under Article 267 TFEU.
Secondly, in legal terms, it is advisable for there to be some way of dealing with the issue should it arise. The Constitution Committee’s solution is premised on investing all EU direct retained law with the status of primary legislation. The issue can, however, be dealt with straightforwardly if, as suggested above, some EU measures are accorded the status of primary legislation and others are regarded as secondary legislation. This can be achieved, while excising the language of the supremacy of EU law. Thus, a replacement for clause 5(2) could read as follows:
If, on or after exit day, there is any inconsistency between measures that have been made part of UK law through clauses 2, 3 or 4, and a UK enactment or rule of law in force before exit day, priority shall be accorded to the former over the latter.
The preceding formulation achieves the desired end and excises the language of supremacy.
Paul Craig, Professor of English Law, St John’s College, Oxford
(Suggested citation: P. Craig, ‘The Withdrawal Bill, Status and Supremacy’, U.K. Const. L. Blog (19th Feb. 2018) (available at https://ukconstitutionallaw.org/))