It is well-known that the status of retained EU law post Brexit was originally left undefined by the European Union (Withdrawal) Bill, save that it is classified as primary legislation for the purposes of the Human Rights Act 1998. This led to criticism of the Bill, leading to a suggested recommendation from the House of Lords Constitution Committee to classify all retained EU law as primary legislation. This, in turn, was criticised in a series of blog posts from Paul Craig and Sir Stephen Laws, in addition to a report of the Bingham Centre for the Rule of Law. The Government has now provided further clarification, inserting a new clause after clause 6 of the Bill and amending Schedule 8. These amendment were approved by the House of Lords.

This series of two blog posts (Part Two will be posted on Friday) will evaluate the extent to which these amendments achieve the Bill’s aims of certainty and continuity, as well assessing how far they respond to the criticisms of the earlier clause. There are three main issues. First, how far does the new categorisation of retained EU law clarify the status of EU law post Brexit? Second, do the amendments provide sufficient protection for constitutionally important retained EU law from future amendment? Whilst this was not a stated aim of the amendments, there has been criticism that the Withdrawal Bill may make it too easy to amend retained EU law through delegated legislation, failing to set out those elements of retained EU law which should only be capable of amendment by primary and not secondary legislation. Third, do the amendments provide a better or worse solution to the supremacy conundrum? The first post will argue that the amendments do provide some clarity, but do not provide a full account of the status of retained EU post exit day, and therefore give rise to further issues of legal certainty. The second post will argue that, in addition, the amendments may not make more important or fundamental provisions of retained EU law harder to modify, and fail to respond to the deeper problems of legal certainty which arise from preserving the supremacy of EU law post exit day.

An Outline of the Amendments

The amendments do two things. First, they deal with the status of EU-derived domestic legislation – e.g. measures that were enacted to implement EU law into domestic law prior to exit day. These measures will retain the same status they had prior to exit day. So, for example, the Working Time Regulations 1998 would retain their status as delegated legislation post exit day. Second the amendment deals with retained direct EU legislation – i.e. EU Regulations, Decisions and EU tertiary legislation that are directly applicable, applying in UK law without further implementation. The amendments draw a distinction between ‘direct principal’ and ‘direct minor’ EU legislation. Direct minor EU legislation is a residual category – i.e. direct EU legislation which is not direct EU principal legislation. Direct principal EU legislation is defined predominantly as direct EU legislation which is not EU tertiary legislation. EU tertiary legislation is defined in clause 14 of the Bill – e.g. if a Regulation empowers the Commission to enact Regulations, then these Regulations enacted by the Commission would be EU tertiary legislation. It is hard to understand these complex amendments. In short, direct principal EU legislation is more akin to primary legislation and direct minor EU legislation is more akin to secondary legislation. However, they are not generally classified as such. Rather, their status is only defined in terms of how the provisions can be amended or modified.

Greater Clarity

It is almost too easy to conclude that the proposed amendments to Schedule 8 render the law unclear. Their wording is convoluted at best, with each provision referring to other provisions in the Withdrawal Bill. Trying to decipher their meaning is, from personal experience, migraine-inducing. But, this is a cheap shot. Determining the status of retained EU law post Brexit is not easy. Any amendment would almost by definition be complex. Where the amendments fall down, however, is because they fail to achieve their stated aim. They do not provide a definitive account of the status of retained EU law post Brexit.

As mentioned above, the amendments distinguish between principal and minor direct EU legislation. Directly effective provisions of EU law that have not been implemented into UK law are treated in a similar manner to direct principal EU legislation. It is harder to modify direct principal EU legislation as opposed to direct minor EU legislation. Both can be modified by primary legislation and by delegated legislation made under Henry VIII clauses  – i.e. those clauses which enable delegated legislation to override primary legislation.  The only restriction on this power is that delegated legislation made under a Henry VIII clause cannot repeal any enactment contained in Northern Ireland legislation by an Order in Council. Direct minor EU legislation can also be modified by delegated legislation generally. However, any modification of direct minor EU legislation also has to take account of the provisions of direct principal EU legislation under which the direct minor EU legislation was originally enacted, and directly effective EU law incorporated into UK law through clause 4 of the Bill. Direct principal EU legislation and directly effective provisions of EU law cannot be modified by delegated legislation that is not made under a Henry VIII power unless this modification is ‘supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation’, or where a modification of principal direct EU legislation is needed to ‘confirm or approve transitional, transitory, or saving provisions’.

The amendments only cover the extent to which EU law can be amended or modified in the future. However, as Lord Pannick explained in debate in the House of Lords, there are other circumstances in which an understanding of the status of retained EU law is necessary. Does the fact that direct minor EU legislation can be amended more easily than direct principal EU legislation mean that it is to be regarded as delegated legislation for these purposes? Also, does the fact that retained directly effective provisions of EU law that have not been implemented in UK law are modified in the same way as direct principal legislation mean that they are to be regarded as akin to primary legislation more generally? In other words, is the means through which a provision is amended a consequence of its status, or is the status of a measure to be determined according to the means through which it can be amended or modified?

For example, what if a conflict arises between, retained direct EU legislation, be it minor or principal and legislation enacted on or after exit day? If that EU direct legislation is to be regarded as delegated legislation, then the legislation enacted on or after exit day would override retained direct EU legislation to the extent that two conflicted. However, if the retained direct EU legislation is regarded as primary legislation, then the courts would aim to interpret these two provisions compatibly, and, to the extent that this was not possible, the later measure would impliedly repeal the earlier measure. This may seem to give rise to the same outcome in practice, but the task of the court is different. There is no incentive to first see if two apparently incompatible provisions can be reconciled when dealing with a conflict between primary and delegated legislation. Primary legislation is higher in the legal hierarchy than delegated legislation.

Further issues may arise if retained EU law is regarded as constitutional in nature, referring to the emerging hierarchy between constitutional and ordinary legislation. Whilst we normally regard this distinction as playing a clear role as regards implied repeal – in that constitutional statutes are not subject to the doctrine of implied repeal in the same way as ordinary legislation – there are other consequences of classifying measures as constitutional in nature. Courts are more likely to interpret ordinary legislation so as not to contradict constitutional legislation. Would the same be true of retained EU laws that are deemed to be constitutional? The retention of the supremacy of EU law in clause 5 may resolve this conundrum when this arises between retained EU law and legislation enacted prior to exit day, but not when this arises when examining conflicts between retained EU law and legislation enacted after exit day.

Whilst we may get some clarification as to the status of retained EU law post exit day, these amendments fail to provide a complete account. As such, they may give rise to considerable uncertainty post exit day as the courts have to determine whether the distinctions between directly effective provisions of EU law, direct principal EU legislation and direct minor EU legislation have implications when these provisions conflict with each other, or with other principles of UK delegated or primary legislation post exit day.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘Status of EU Law Post Brexit: Part One’, U.K. Const. L. Blog (2nd May 2017) (available at https://ukconstitutionallaw.org/))