The European Union (Withdrawal Agreement) Bill is a highly complex piece of draft legislation.  It interacts with the (revised draft) EU Withdrawal Agreement, existing domestic law, in particular the European Communities Act 1972 and the European Union (Withdrawal) Act 2018, and a number of UK constitutional principles.  It will have important implications in defining the nature of the transition period (which the Bill describes as an ‘implementation period’) following the UK’s exit from the EU, as well as underpinning the broader, ongoing agreement concerning the future rights of EU citizens in the UK.

The Bill raises many issues which demand attention, and it is fanciful to believe that it could receive anything like adequate scrutiny over three days in the House of Commons, and a subsequent period in the House of Lords ending by the 31^st October 2019.  This is especially the case given this Bill has not been released until the evening before its second reading in the Commons, with no opportunities for pre-legislative scrutiny or reflection of any substance.

Given the extent of the complexity and the lack of time available, this post aims to provide a brief reaction relating to one specific constitutional issue: the Bill’s treatment of parliamentary sovereignty.  In particular, it will consider how the Bill delivers on the commitments in the draft Withdrawal Agreement regarding the domestic legal status of the obligations agreed in that treaty, and reflect on some of the broader implications of the Bill’s novel incorporation of a ‘parliamentary sovereignty’ clause.

Supremacy and continuity

Article 4 of the Withdrawal Agreement determines the status that the treaty must have in domestic law, which is of particular significance for the arrangements made concerning the post-Brexit rights of EU citizens in the UK.  Art 4(1) establishes that these obligations shall have equivalent status in UK law and EU law, providing a constraint against subsequent unilateral domestic alteration of these obligations.  In light of this prescribed equivalent status, Art 4(1) also establishes the potential for direct effect of the Withdrawal Agreement in the law of the UK.  Art 4(2) provides that the UK must ensure, through domestic primary legislation, that judicial powers are available for the disapplication of any domestic law which is inconsistent or incompatible with the obligations in the Withdrawal Agreement.

In this sense, Art 4 of the Withdrawal Agreement sets out a scheme which reflects the key aspects of the current status of EU law in the UK.  This is a scheme which the EU (Withdrawal Agreement) Bill is required to re-create and replicate in implementing the obligations contained in Art 4.

This is primarily done in clause 5 of the EU (Withdrawal Agreement) Bill – this inserts a new section 7A into the EU (Withdrawal) Act 2018.  This new section provides for the domestic supremacy of the terms of the EU Withdrawal Agreement using almost identical language to that which has been used in the European Communities Act 1972 to provide for the domestic supremacy of EU law to this point.  The provision is broken down in a way which provides a clearer structure to section 2(1) and section 2(4) of the ECA 1972, but the essence is very similar:  section 7A(2) indicates that the ‘rights, powers, liabilities, obligations, restrictions, remedies and procedures’ in the Withdrawal Agreement which are intended to have direct effect are to be ‘recognised and available in domestic law’ and ‘enforced, allowed and followed accordingly’.  Section 7A(3) offers a slight updating of the ECA 1972 formula, indicating that ‘every enactment… is to be read and has effect subject to’ those norms made available by sub-section (2).   Clause 37 defines ‘an enactment’ to include ‘an enactment whenever passed or made’.  This therefore ensures the obligations contained in the Withdrawal Agreement will have priority over all other law, existing or future, including any inconsistent provisions in the (amended) EU (Withdrawal) Act 2018 itself.

Clause 6 establishes an identical scheme in relation to obligations flowing from the EEA EFTA and Swiss separation agreements, ensuring equivalent treatment for citizens of those states as for EU citizens in the UK.  Separate provision is made in clauses 1 and 2 of the Bill to ensure the supremacy of EU law during the transition or implementation period. The effects of the European Communities Act 1972 are saved for the purposes of giving effect to Part 4 of the Withdrawal Agreement (including the preservation of judicial powers of disapplication of inconsistent national law established as a necessary consequence of this scheme in Factortame (No.2)),despite the fact that the 1972 Act will still formally be repealed on ‘exit day’.  The supremacy of EU law will consequently have a lifespan which extends beyond the Act which provided the basis for that supremacy to exist (somewhat ironically, given the lengths to which David Cameron’s coalition government went to establish that the domestic status of EU law was dependent on the continuing statutory basis primarily provided by the 1972 Act).

There is therefore a clear continuity in approach between the EU (Withdrawal Agreement) Bill and the European Communities Act 1972.  This is evident both in the new mechanisms set out for the specific protection of Withdrawal Agreement obligations in clauses 5 and 6, and the preservation of the key effects of the 1972 Act in clauses 1 and 2 for the purposes of ensuring a smooth transition period to the end of December 2020 (and potentially beyond, given Article 132 of the Withdrawal Agreement permits one extension of that period for up to one or two years, which clause 30 of the EU (Withdrawal Agreement) Bill makes subject to parliamentary approval).  This continuity in approach is unsurprising, given the existing legislative arrangements establishing the domestic supremacy of EU law provided a tried, tested and functioning template to be adopted in the new Bill.

Sovereignty and novelty

Yet there is novelty in the Bill, but perhaps not in the way we might have expected.  There is no sign of any ‘additional procedural step’ before the EU (Withdrawal Agreement) Bill could be repealed, which the previous government’s White Paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union (Cm 9674, para 46(d)) suggested would be necessary to reinforce the protection of the agreement reached on citizens’ rights in July 2018.  This specific suggestion appeared to be a domestic means to implement the commitment contained in the Joint Report of the Negotiators from December 2017, which indicated that the Bill to implement the Withdrawal Agreement would establish that ‘the provisions of the citizens’ rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future’ (para 36).  There is no obvious evidence of an explicit ‘express repeal’ requirement in the current Bill.  It might still be argued that this is the implicit effect of the arrangements established to ensure the legal priority of the Withdrawal Agreement obligations in domestic law, but the lack of clarity on this point is unhelpful (even if this is all constitutionally disputed territory).

Instead, rather than establishing explicit (but still contingent and avoidable) domestic law constraints on Parliament’s power to legislate in violation of the Withdrawal Agreement, the Bill goes in another direction.  In clause 36, it includes a provision directly emphasising the extent to which Parliament is not ultimately inhibited by any of the treaty-based commitments to which the legislation gives effect.

Clause 36 might be understood as a development of the ideas underpinning section 18 of the European Union Act 2011, although this new provision is a ‘sovereignty clause’ which actually endorses the subsistence of parliamentary sovereignty in explicit terms, rather than vaguely and indirectly as in the prior statute.  But clause 36 is also declaratory in effect, in the manner of the recent provisions in devolution legislation signifying the permanence of the Scottish and Welsh political institutions, and recognising the normal (but not absolute) operation of the Sewel convention.

What is the legal effect of clause 36?  It is tempting to regard it as essentially political window dressing, asserting the absence of any derogation from parliamentary sovereignty in consequence of the mechanisms introduced by the EU (Withdrawal Agreement) Bill.  Yet while that message may appeal to some sceptics of an ongoing relationship between the UK and the EU, it is difficult to see that it has any practical effect in terms of diminishing the actual legal status of the obligations flowing from the Withdrawal Agreement in domestic law.  It may therefore be an affirmation of parliamentary sovereignty which fails to satisfy its primary audience – Parliament may well retain its legal sovereignty, despite having exercised that sovereignty in such a way as to give enhanced domestic status to rules contained in a treaty agreed with the EU (again).

The direction of travel in the approach to this Bill, away from procedural statutory limits on repeal and towards the formalistic affirmation of parliamentary sovereignty, is striking.  This diluted approach to embedding the provisions of the Bill might also be reflected in the process established for the ‘protection for workers’ rights’, which by clause 34 and Schedule 4, simply introduces a system requiring ministers to make statements of non-regression in relation to workers’ retained EU rights on the introduction of relevant legislation.  Seemingly modelled on the process in section 19 of the Human Rights Act 1998, there is no procedural bar to a minister making a statement that regression will occur, but the government wishes to proceed regardless, beyond a very light, general duty to consult with representatives of workers (and also employers) prior to a statement.

Conclusion

The broader consequences of the inclusion of clause 36, and the absence of greater clarity regarding the circumstances in which the EU (Withdrawal Agreement) Bill could be repealed, will be a matter for further debate.  Ultimately, this may depend on how we understand parliamentary sovereignty.

If this doctrine is one which was able to accommodate the supremacy of EU law in the UK’s constitutional system during our decades of membership, then given the continuity with that previous approach in this Bill, there is no reason to think we are derogating from parliamentary sovereignty now in the manner in which the Withdrawal Agreement is being implemented.  Indeed, the most significant effect of clause 36 may be to confirm retrospectively, at the moment of exiting the EU, that the domestic legislative scheme which gave effect to the supremacy of EU law was entirely compatible with the doctrine of parliamentary sovereignty all along.

At the same time, however, while it may give effect to the core obligations set out in the draft Withdrawal Agreement, it is not clear that this draft, as it stands, fully implements the more detailed commitments of the previous government relating to the content and status of an EU (Withdrawal Agreement) Bill.

I’m grateful to Alison Young, Adam Tucker and Stephen Tierney for very helpful comments on a draft version of this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘The European Union (Withdrawal Agreement) Bill: Parliamentary Sovereignty, Continuity and Novelty’, U.K. Const. L. Blog (22nd Oct. 2019) (available at https://ukconstitutionallaw.org/))