In an earlier posting I intimated that the initial divide between EU measures that should be regarded as primary legislation post-Brexit and those that should be regarded as secondary measures would not be too difficult to draw. When the initial divide had been made it could then be decided whether the status of any such measure should be reassigned. Here then are the figures for that initial divide for the period between 1/1/2009-5/3/2018, based on a preliminary look at the materials: there were in the order 21,000 secondary measures enacted, and approximately 2,400 legislative measures adopted under the co-decision or ordinary legislative procedure, or something akin thereto. The calculation does not distinguish between measures that are, and are not, in force. That would not be difficult to do, and would of course have to be done in any event, even if all EU measures were to be treated as primary legislation. The figures, nonetheless, give some idea of the balance between primary and secondary measures enacted by the EU over time. The basic point is that secondary measures exceed primary measures in the EU by a very significant margin. My initial impression is, moreover, that very few secondary measures would warrant re-classification as primary measures.

It might be helpful in this respect to bear in mind certain facts about UK legislative practice. In the last twenty years, 1998-2017 inclusive, the UK Parliament enacted on average 35 public general statutes, and 2,176 statutory instruments, per year. The precise number of EU measures that will become part of UK law pursuant to the European Union (Withdrawal) Bill (EUWB) is not exactly clear. The figures have ranged between 10,000-20,000. If all such measures become primary legislation, then it has the following consequence. If there are 20,000 such measures this amounts to 571 years of primary legislation as judged by the preceding figure of 35 per year; if there are 15,000 such measures it is equivalent to 428 years of primary legislation in the UK; if there are 10,000 measures this computes to 285 years of primary legislation; and if the figure is only 5,000, then it would be akin to a mere 143 years.

The same general point can be put in a different way. The majority of presently applicable EU legislation post-dates 1998. The figures of primary legislation per annum for the period 1998-2017 would, by way of contrast to the present average of 35 UK statutes per year, be 1000 UK statutes per annum, assuming 20,000 EU measures; 750 UK statutes per annum, assuming there were 15,000 EU measures; 500 UK statutes per annum if there were 10,000 EU measures; and 250 UK statutes pa if there were 5,000 such measures.

I do not think that we should regard this with constitutional equanimity. This does not cohere with how we have treated and classified UK law as between primary and secondary legislation. And it does not cohere with the divide between legislative and non-legislative acts in the EU. The general pattern in the EU is very similar to that in the UK, with the number of secondary or tertiary instruments exceeding the number of primary legislative acts by a very large number, as seen above.

The primary objective of the EUWB is to provide certainty and continuity for the rule book on exit day, as it existed prior thereto, with Parliament free thereafter to make the changes that it sees fit. This objective is not furthered by according EU measures a status that they did not have in EU law, more especially when it does not accord with the status that the same or analogous measures would have in UK law. Treating all EU measures as primary legislation would, moreover, give rise to a range of difficulties, which I identified in previous postings, which can be found here and here.

In a recent posting, Sir Stephen Laws argued that it would, nonetheless, be better if all retained EU law were to be regarded as primary legislation. He contends that there would be two issues/difficulties in treating EU measures as statutory instruments, notwithstanding that this coheres with their secondary status in EU law, and that it would fit with how they would be regarded in UK law.

The first issue concerns the way in which retained EU law would be interpreted. The argument is that there could be difficulties in deciding how to interpret a provision of EU law brought into UK law as a statutory instrument, when the measure pursuant to which it was made was a legislative act in EU law, which would then be classified as primary legislation for the purposes of UK law. I do not accept this argument for two related reasons.

First, the judicial scenario is one in which the UK courts are faced with an issue concerning the interpretation, inter-relation or validity of an EU legislative act, and a delegated or implementing act made pursuant thereto, which have been transformed respectively into UK primary and secondary legislation. In a post-Brexit world such interpretation of EU measures transformed into UK law would perforce be subject to any statutory rules, such as Schedule 1, para 1(1) of the Withdrawal Bill, which restricts the ability to challenge retained EU law, on or after exit day, on the ground that it was invalid prior to exit day. Subject to this, the courts would naturally interpret the secondary measures in the light of the primary measures, just as they do when the measures are purely domestic. This is more especially so because the EU measures are written in precisely this manner. They state that, for example, a specific delegated regulation has been made pursuant to a particular legislative act, with numbers assigned for the respective measures. The courts have been interpreting such measures for the 45 years that we have been in the EU. There is nothing novel in this regard. National courts routinely interpreted the relationship between primary and secondary EU measures in the context of actions brought pursuant to Article 267 TFEU. National courts were also called on to adjudicate as to whether a statutory instrument enacted pursuant to the ECA 1972, s 2(2)(a), adequately implemented an EU directive. There is no reason why the transformation of such measures into primary statutes and statutory instruments should make any difference in this respect. If there is concern it could, in any event, readily be met, by the addition of a simple paragraph to the draft clause which I set out in an earlier post, which would read:

“Retained EU law that takes effect in UK law as a statutory instrument under paragraphs 3, 4, and 6 shall be interpreted in the light of the retained EU law pursuant to which it was made, which forms part of UK law through paragraphs 1, 2, and 5.”

Secondly, the interpretive issues faced by courts would, in reality, be far greater if all retained EU law were treated as primary measures. This is in part for reasons set out in an earlier posting. It is in part for simpler, more foundational reasons. The material that comes before the UK courts will, prima facie, be in the following form: there will be legislative, delegated and implementing acts, derived from their EU origin, which are then characterized within the UK legal order in the way that Parliament decides. Let us assume that all such measures are treated as primary legislation. That does not alter the fact that what is before the court are measures, which bear the imprint ‘delegated act made pursuant to the legislative act’, or ‘implementing act made pursuant to a legislative or delegated act’. To label all such measures as primary legislation would therefore be confusing for courts and litigants alike, insofar as it created the impression that such measures had an equal status, which is belied by their very wording and substance.

The other issue raised by Sir Stephen Laws relates to rules concerning the amendment of statutory instruments. The argument is as follows. The Interpretation Act 1978 s. 14 provides that a power to make SIs, implies, unless the contrary intention appears, a power exercisable in the same manner and subject to the same conditions and limitations, to revoke, amend or re-enact any instrument made under the power. This power is parasitical on the power under which any subordinate legislation is made. It is therefore repealed if the parent statute is itself repealed. It follows that the power to amend regulations under the European Communities Act (ECA) 1972, s. 2(2) disappears with the repeal of the ECA. It follows also that the s. 14 IA 1978 power makes it unnecessary, in practice, for any power to make subordinate legislation to include power to amend subordinate legislation made under other such powers.

I accept the preceding point, but it has nothing to do with the suggestion to divide retained EU law between primary and secondary legislation in the manner that I argued for. The reason is as follows. The status accorded to such law in the UK legal order, and the manner in which it can be amended are two related, but distinct, issues. The choice in both respects resides with the UK Parliament. I accept that the Interpretation Act 1978 s 14 would not apply to statutory instruments under the ECA, when the ECA has been repealed, although this is not because of the proposed divide of EU measures between primary and secondary legislation. I accept also that it would not apply in its present wording to clause 3 measures brought into UK law. This, however, tells one nothing as to the first order issue, which is whether the EU material should be divided between primary and secondary legislation. It merely tells one that there is a second order issue, as to how such measures should be capable of being amended when brought into the UK legal order. That is an issue for the UK Parliament to address, and it has done so to some extent through clause 7, combined with Schedule 7 of the Withdrawal Bill, which set out the rules on amending retained law, and the procedure by which this must be done. These second order rules for change/amendment may well be contestable, as borne out by the discussion concerning these provisions of the Bill. The need for some such second order rules, whatsoever they might be, is, however, an inevitable result of the incorporation of EU law into the UK legal order. The issue is, moreover, not avoided in any way by treating all such measures as primary legislation. It is then for the UK Parliament to decide how primary legislation can be amended, which is presumptively through other primary legislation, subject to the choice made by Parliament that Henry VIII clauses should be allowed on certain occasions. The denomination of all retained EU law as primary legislation would inevitably lead to frequent recourse to Henry VIII powers to amend such provisions, since there will not be time to amend through primary legislation. Much of the ‘primary legislation’ thereby amended would be relatively minor, and hence the negative publicity flowing from the use of such clauses would lose its impact, since MPs would quickly realize that the measures being amended were not, as judged by their content, primary legislation at all. There would then be the consequential danger that MPs will take little or no note of the use of Henry VIII powers when it really does matter, because the measure thereby amended really is primary legislation as judged by its substance as well as its form.

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

(Suggested citation: P. Craig, ‘European Union (Withdrawal) Bill: Legal Status and Effect of Retained Law’, U.K. Const. L. Blog (8th Mar. 2018) (available at https://ukconstitutionallaw.org/))