In a previous post I set out some suggestions concerning the status of EU law in the UK post-Brexit. I do not wish to repeat the arguments advanced earlier. I would merely add the following.

It is desirable that the status accorded to EU law in the UK post-Brexit matches, insofar as possible, the status accorded to that law pre-Brexit. This is central to the schema of the European Union (Withdrawal) Bill (EUWB), which is intended to provide continuity and certainty as to the legal rule book in the UK, pending any change decided on by the UK legislature. It is also desirable that the status accorded to EU law in the UK post-Brexit coheres with what we would recognize in our constitutional order as the divide between primary and secondary legislation.

The House of Lords Constitution Committee (HLCC) proposal to afford the status of primary legislation to all clause 3 measures does not, with respect, meet the preceding criteria. The proposal would mean that circa 80-90% of such measures would be misclassified as judged by both criteria. This is the number that are delegated or implementing acts, or the pre-Lisbon equivalent, and they would naturally be treated as secondary legislation in the UK. The proposal would not accord with the legal status of such measures in EU law, and it would not fit with our considered understandings of the divide between primary and secondary legislation in the UK.

The same problems would be present if it were decided to extend the HLCC proposal to clause 2 measures, such that they were all to be treated as primary legislative acts. A glance at the statutory instruments enacted pursuant to s 2(2) of the European Communities Act (ECA) reveals that re-designation of such measures as primary legislation would not be appropriate for a very great many such enactments.

Having considered the matter more fully than when I initially tendered evidence to the HLCC’s earlier report, I am now of the view that a rational and workable divide between retained EU law that should be classified as primary legislation, and that which should be classified as statutory instruments can be made. The divide exists in EU law. There was a distinction between primary and secondary norms in the pre-Lisbon world, and the distinction is even more evident post-Lisbon.

The proposed clause set out below assigns the legal status to EU retained law in the UK based on the status it had in EU law. It is a modification to the clause set out in the earlier posting. The proposed clause applies to retained EU law as defined in clause 6(7) of the Bill, which covers the material in clauses 2-4.

Paragraphs (1) and (2) provide that EU legislative acts should, prima facie, be treated as primary legislation post-Brexit. Paragraph (1) covers the situation pre-Lisbon: primary legislative norms were made principally under Article 251 EC and Article 252 EC. Paragraph (2) deals with post-Lisbon: legislative acts are enacted under Article 289 of the Treaty on the Functioning of the European Union (TFEU).

Paragraphs (3) and (4) provide that EU secondary acts should, prima facie, be treated as statutory instruments under UK law. Paragraph (3) achieves this for the pre-Lisbon world, by stipulating that legal acts made pursuant to those enacted under Articles 251-252 EC will be statutory instruments. This is reinforced through reference to Council Decision 99/468, which laid down what were known as the Comitology procedures through which such secondary acts were made. Paragraph (4) achieves this for the post-Lisbon world because delegated and implementing acts, which are secondary or tertiary measures under EU law, are classified as statutory instruments under UK law.

Paragraphs (5) and (6) extend this schema to clause 2 measures, and to other statutes through which EU law has been implemented in the UK. Much non-directly applicable EU legislation has been enacted via ECA s 2(2) as a statutory instrument, even if the measure was a legislative act in EU parlance. This did not matter in terms of the legal status and protection afforded to such measures in a pre-Brexit world, since they were shielded by the supremacy of EU law. This will not be so post-Brexit. Paragraphs (5) and (6) are designed, therefore, to mirror for clause 2 measures, and for other acts through which EU law has been implemented in the UK, the treatment given to clause 3 measures. If a clause 2 measure would, as judged by the EU measure being implemented, be regarded as a primary legislative act, then it should be so treated post-Brexit. If a clause 2 measure would, as judged by the EU measure being implemented, be regarded as a secondary measure, then it should be so regarded post-Brexit. This is subject to the caveat included in paragraph (6) to provide for the situation where the obligation included in EU secondary legislation has been implemented by amendment to the pertinent UK primary legislation. There is no reason to downgrade the UK primary legislation in such circumstances.

Paragraph (7) provides for cases that might not be caught by the previous paragraphs, which, if they arise, will be mostly confined to paragraph (1). It also makes provision for clause 4: insofar as directly effective Treaty rights remain in a post-Brexit world, they must have a legal status in the UK legal order, and the status of primary legislation is most appropriate.

Paragraph (8) covers the situation where the result of the initial classification is felt to be inappropriate.

In pragmatic terms, the proposed clause would not be difficult to apply. To the contrary, the determinations flow straightforwardly from the designation under EU law, which is apparent from the face of the measure. The initial classification could be undertaken within a short period by a few people with training in EU law. This is more especially so, since a great deal of existing EU law will be post-Lisbon, covered by paragraphs (2) and (4) of the proposed clause, and this is the easiest to classify. By way of contrast, the time and cost of not making any designation of the legal status of retained EU law in the UK legal order post-Brexit will be very significant indeed.

In substantive terms, the designation of measures within the UK legal order that flows from the clause would provide certainty; it would cohere with the meaning accorded to such measures in EU law and hence provide the continuity that is central to the purpose of the EUWB; and it would cohere with the divide between primary legislation and SIs as it pertains in UK law.

1. Retained EU law that was made pursuant to Article 251 EC and Article 252 EC is deemed to be primary legislation when it forms part of domestic law on or after exit day.
2. Retained EU law 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.
3. Retained EU law made pursuant to acts made under Article 251 EC and Article 252 EC, and/or in accord with the procedures in Council Decision 99/468, is deemed to be a statutory instrument when it forms part of domestic law on or after exit day.
4. Retained EU law 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.
5. Retained EU law that took effect in UK law under the ECA 1972, s 2(2), or pursuant to other UK legislation, is deemed to be primary legislation if the EU law thereby implemented fell within paragraphs (1) or (2) above.
6. Retained EU law that took effect in UK law under the ECA 1972, s 2(2), or pursuant to other UK legislation, is deemed to be a statutory instrument if the EU law thereby implemented fell within paragraphs (3) or (4) above. This paragraph does not apply where the EU law that falls within paragraphs (3) or (4) has been implemented by amendment to UK primary legislation.
7. Retained EU law that does not fall within paragraphs (1)-(6) shall be afforded the status of primary legislation when it forms part of domestic law on or after exit day.
8. 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.

Paul Craig, Professor of English Law, St John’s College, Oxford

(Suggested citation: P. Craig, ‘European Union (Withdrawal) Bill: Legal Status of EU Retained Law’, U.K. Const. L. Blog (26th Feb. 2018) (available at https://ukconstitutionallaw.org/))