In an earlier blog post, I argued that whilst the Government’s amendments provided some clarity as to the status of retained EU law post Brexit, they failed to provide a complete account, giving rise to a potential for further uncertainty in the future. This post will examine two further issues – whether the amendments respond to calls for providing a stronger protection for fundamental aspects of EU law from future erosion and whether they resolve issues as to the preservation of the supremacy of EU law as regards measures enacted prior to exit day.

Stronger Protection of Fundamental Aspects of EU Law?

Concerns have been raised as to whether it will be too easy to amend fundamental provisions of  retained EU law post exit day. A further consequence of the amendments is to make it harder to modify principal direct EU legislation and directly effective provisions of EU law than it is to amend minor direct EU legislation. This stronger protection was referred to by Lord Callanan when arguing against a proposed, but ultimately withdrawn, House of Lords amendment, Amendment 30A, to protect some categories of EU law – including, inter alia, environmental protections and equality provisions – from amendment by delegated legislation made under a Henry VIII clause. According to Lord Callanan, substantive restrictions would not be needed, given the amendments to clause 8, and the bolstering of procedural protections through the new requirements involving the House of Lords and a House of Lords sifting committee when using the negative resolution procedure to enact measures under the broad Henry VIII clauses in the EU Withdrawal Bill. These amendments will ensure that it is less likely that direct principal EU legislation and directly effective EU law are modified through the negative resolution procedure. However, difficulties may still arise.

First, direct principal EU legislation and directly effective provisions of EU law can still be amended through the EU Withdrawal Bill’s Henry VIII clauses as well as other Henry VIII clauses. This does nothing to quell concerns that it may be too easy to modify important retained EU law through delegated legislation over which there may be little scrutiny in practice, or under Henry VIII clauses in legislation other than the Withdrawal Bill, which do not contain sifting committees to help ensure stronger scrutiny is used when required. The House of Lords approved amendments to clauses 7 and 9  and of clause 17 of the EU Withdrawal Bill, meaning that the Minister would only be able to propose delegated legislation if it was necessary, as opposed to when she considered it appropriate. These amendments may not survive in the House of Commons, but they do provide a better means of protecting retained EU law from inadvertent amendment or modification by delegated legislation. Similarly, better specific procedural ring-fencing is found in Amendment 11, also approved by the House of Lords, which reinforces scrutiny over measures which may reduce EU-protections in some areas of EU law, requiring affirmative resolution by both Houses, consultation with stakeholders, an explanatory statement, and a certificate from the Minister that a proposed modification ‘does no more than make technical changes to retained EU law in order for this to work following exit’.

Second, direct principal EU legislation and directly effective provisions of EU law can be modified, if not amended, by secondary legislation that would not normally include the power to amend primary legislation, when this is connected to the modification of direct minor EU legislation. This is to stand the supposed hierarchy between direct principal and direct minor EU legislation on its head. The new Schedule recognises that a power to amend or repeal direct minor EU legislation can be read in to legislation empowering the enactment of delegated legislation when this is compatible with either direct principal EU legislation or directly effective provisions of EU law. This is to recognise that both of these sources of EU law are higher in the hierarchy, conditioning the exercise of direct minor EU legislation. If direct principal EU legislation and directly effectively provisions of EU law are therefore meant to be more important, we would expect a power to amend direct principal EU legislation to include incidential modifications to dirct minor EU legislation, not the other way around. It should not be the case that provisions that normally cannot be amended by delegated legislation can be modified in this way because it is connected to a modification of measure that is lower down the legal hierarchy.  This appears to have been achieved through introducing a distinction between ‘amendment’ and ‘modification’. You may not be able to ‘amend’ direct principal EU legislation, but you may ‘modify’ it when connected to the amendment of direct minor EU legislation. It is difficult to know what the difference is between an amendment and a modification; giving rise to the potential for future litigation in order to clarify these terms.

Third, it would be easy to argue that any modification of direct principal EU legislation or of directly effective EU law is ‘supplementary, incidental or consequential’ or is needed to ‘confirm or approve transitional, transitory, or saving provisions’. It may, in practice, be just as easy to modify directly effective provisions of EU law and direct principal EU legislation as it is to modify, amend or revoke direct minor EU legislation. Even if this is not the case, it is not difficult to predict that this may give rise to potential litigation to determine the meaning of these terms. This may detract from the certainty these provisions are meant to provide.

The Sovereignty Conundrum

The recommendations of the House of Lords Constitution Committee were not made in a vacuum. Rather, concerns arose over clause 5 of the Withdrawal Bill. This preserves the principle of the supremacy of EU law, ‘so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’. This has two components. First, as regards interpretation, the provision appears to incorporate the Marleasing doctrine, requiring any aspect of UK legislation to be interpreted in line with any aspect of EU law. As is well known, this principle of interpretation can often be far-reaching, with courts reading words in to legislation to ensure its compatibility with EU law, as well as reading down broad provisions of legislation to ensure they do not apply in a manner that would contradict EU law. Second, as regards disapplication, directly effective provisions of EU law can be used to disapply UK legislation.

However, whilst this may appear to provide an account of what is meant by ‘the supremacy of EU law’, it only provides an outline of its consequences. The term is open to a number of interpretations. Is it about ‘supremacy’ or ‘primacy’ – i.e. is it about restricting law-making capacity, or just a rule instructing courts as to which provision to apply when two conflict? There are also issues as to whether it is national courts or the CJEU who determine the scope of the supremacy of EU law. The UK courts and the CJEU do not interpret the supremacy of EU law in the same way – have we incorporated the conception of the CJEU or of the UK Supreme Court in HS2 and Miller? In addition, there are contradictory accounts of whether it is the principle of supremacy or that of direct effect which plays the predominant role when we talk about the supremacy of directly effective provisions of EU law. This can cause particular confusion when it comes to determining the scope of exclusionary effect. In short, taking the ‘supremacy of EU law’ and placing it in domestic law may give rise to considerable uncertainty.

The House of Lords Constitution Committee’s proposal aimed to remove this confusion and achieve the effect of the supremacy of EU law indirectly. This could be done by treating retained EU law as primary legislation enacted on exit day. As such, the doctrine of implied repeal would apply. This would mean that, to the extent that there was a conflict between legislation enacted prior to exit day and retained EU law, retained EU law would prevail as ‘legislation’ enacted on exit day which therefore impliedly repealed earlier legislation. To the extent that legislation enacted after exit day contradicted retained EU law, that later legislation would impliedly repeal retained EU law.

The difficulty with the solution of the House of Lords Constitution Committee was two-fold. First, did it really resolve the sovereignty conundrum? It only really dealt with the issue of whether EU law should overrride earlier UK law. It did not deal with issues arising from interpretation and Marleasing. Just to add to the confusion, disapplication is arguably not the same as implied repeal. The former relates to ‘primacy’ and the latter to ‘supremacy’. Second, it potentially created more problems than it resolved, suddenly adding thousands of measures as primary legislation, and failing to recognise how EU-tertiary legislation derives its validity, in part, from other elements of EU legislation conditioning its operation, which would have implications for the way in which it should be modified, interpreted, or declared unlawful.

The Government’s amendments leave clause 5 in place, preserving the supremacy of EU law both in terms of disapplication and interpretation. They prevent the flooding of new legislative provisions in the UK, and do provide some clarity as to how retained EU law may be modified in the future. However, as discussed above, they do not provide complete clarity. In addition, whilst direct EU legislation now has different statuses, we are left with provisions of EU legislation that are akin to delegated legislation when determining how they can be amended, whilst being treated as primary legislation for the purposes of the Human Rights Act 1998, and akin to primary legislation as regards the ability of EU-derived law to disapply UK legislation enacted prior to exit day. This may still give rise to considerable confusion. The question is whether this confusion is the price we have to pay for continuity. The problem with the amendments is that they add further confusion, whilst doing nothing to reduce the confusion that may arise from preserving the supremacy EU law. If the amendments are to be retained, more needs to be done to clarify the meaning and scope of clause 5.

These issues are complex and hard to navigate, especially in such a short space of time when juggling so many other aspects Brexit-related legislation. Nevertheless, they are important. There is a need to analyse all of the different elements of the status of retained EU law post Brexit. It may be that this requires a series of more specific amendments and clarifications, each of which can be analysed when the Bill returns to the House of Commons.

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

(Suggested citation: A. Young, ‘Status of EU Law Post Brexit: Part Two’, U.K. Const. L. Blog (4th May 2017) (available at https://ukconstitutionallaw.org/))