Note: the Government has now (30 March 2017) published its “Great Repeal Bill” white paper here and it states that delegated legislation will be used to “correct” UK law so that the legacy of EU law can continue to operate (eg by removing references to EU institutions). It has also produced the European Union (Withdrawal) Bill (July 2017) since when many people have raised the fears expressed in this piece.
So what happens after Theresa May’s Great Repeal Bill and Brexit? A disturbing prospect has arisen of a bonfire of legal rights currently held by British citizens could be brought about on little more than the say-so of government ministers. No parliamentary debate, little likelihood of votes by MPs, rights lost by administrative order or government “Henry VIII” powers, rather than new laws passing through both Houses of Parliament.
Here is the plan: Given there are many legal rights enshrined in UK law that derive from the European Union and which, under the Great Repeal plan, will remain in effect after Britain leaves, an efficient way must be found to comb through them and disapply them where necessary. It could take mammoth parliamentary sessions passing complex repealing legislation. Instead, and rather chillingly, Conservative barrister Martin Howe QC (among others) has said ministers should be “given powers” to disapply them bit by bit as and when it is deemed appropriate.
So Parliament will be asked to pass a piece of primary legislation in the “Great Repeal Bill”, handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary (delegated) legislation, probably statutory instruments (see below). It will be “the quickest way of taking the necessary decisions … to reemploy or replace them” he told BBC Radio 4’s Unreliable Evidence 14 Sept 2016.
But giving such powers to the Government could leave whole areas of law at the mercy of ministers including employment and equality rights, privacy and consumer rights, environmental law, copyright protections, safety law, food hygiene and many laws affecting business. It is difficult to establish how much British law is driven by the EU but FullFact.org says this:
“An estimated 13% of Acts [primary legislation] and Statutory Instruments have an EU influence, whereas that rises to 62% when EU regulations are included in addition to Acts and Statutory Instruments.”
So, if all this is open to repeal or amendment by delegated legislation, MPs may as well go home for the duration. There will be hardly any other business and in effect the Government will be able to pass wholly new legislation in large areas of law – presumably not quite the victory for the sovereignty of Parliament (not Government) that some Brexiters said they wanted. The proposal is constitutionally dubious, impractical – and wholly oppressive.
But does this plan even make sense? In particular what about all the EU law that is not part of the 13% that has been rendered into British legislation – the Regulations, Decisions and rulings of the Court of Justice of the European Union at Luxembourg? If FullFact is right, this must make up getting on for 40% of UK law – yet it is not written into our legislation and so can’t obviously be “repealed” by Parliament or government ministers. What will happen to it all?
The standard answer of the Brexit-sceptics (and suggested in the Radio 4 programme by Lord Falconer, former Lord Chancellor) is that Parliament must pass a piece of holding legislation that says not a single EU right is lost at the point of exit from the EU. They may, paradoxically, have got their way in the Great Repeal Act
But that will not satisfy the Brexiters who will insist the referendum result meant Britain wanted to get rid of all that law, not keep it indefinitely. So a whole new bureaucracy will have to be set up, packed with – dare one say it – highly paid lawyers to sift through all this law and place it before the appropriately empowered ministers to repeal or reprieve with the flash of a fountain pen.
But it’s even more complex. Among all that law will be UK court judgments based on EU jurisprudence. Will judges be told all that is now to be disregarded – and in a country that is supposed to respect the “separation of powers”, will judges be happy to be told thus?
So, in brief, the practicalities of disentangling Britain from EU law could throw up some alarming – and very un-British – consequences. Far from ditching bureaucrats, putting power back with Parliament, freeing ourselves from overweening executive power, Britain could be transformed into an oppressive bureaucratic nightmare world in which edicts are issued transforming the legal landscape with little parliamentary input, public debate or democratic mandate.
Below the sources of European law are examined and questions raised about how far it is possible or appropriate to use ministerial say-so to salvage or savage them in Brexit Britain. First a look at the secondary legislation that proponents believe will achieve this aim.
What are statutory instruments?
Statutory instruments can be produced by ministers either requiring a positive vote in Parliament (but no debate or scrutiny or amendment) or in a form (negative instruments) that needs no vote at all, though either House of Parliament can veto them (again with no debate or scrutiny or amendment). Over the last 65 years, out of nearly170,000 statutory instruments, only 17 have been rejected by the two Houses.
Such secondary legislation is supposed to be used for non-contentious procedural matters such as updating fines and monetary penalties in primary legislation. But increasingly in recent decades statutory instruments have been used as a shortcut to pass more contentious legislation. There were about 3,500 statutory instruments in 2014, compared with about 1,000 a year in the 1980s. The current Government has been accused of using statutory instruments for “everything from fracking to fox hunting and benefit cuts”, a situation former shadow minister Angela Eagle called an attempt to “govern from the shadows”. The Hansard Society said:
“the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational details”.
To use statutory instruments to roll up acquired rights from the European Union would create a shadow government like no other, presumably able to manipulate EU laws in any way individual ministers desire without full parliamentary oversight.
Does it make sense?
To answer this question one has to look at the nature of EU law. Howe in his Radio 4 comment seemed to suggest the statutory instrument process would apply to only those laws that were created by statutory instrument. But that avoids the issue of what happens to all the other EU laws – which means we must look at the sources of EU law.
Directives: These are issued by the European Commission and are expected to be enshrined in law by the governments of each individual state – giving them therefore a certain leeway to do it in their own way. They are “binding as to the result to be achieved upon each Member State … but shall leave to the national authorities the choice of form and methods” (Art 288 TFEU) Judges are therefore expected to interpret the national statute in light of the original directive. So a judge
“in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter [ie the directive]” – Marleasing SA v La Comercial Internacional de Alimentacion SA 1990
So directives account for the roughly 13% of EU law that is actually written down in UK legislation, whether primary or secondary. One such piece of UK legislation is RIPA (Regulation of Investigatory Powers Act) intended to implement Article 5 of the 1997 European Union Directive 97/66/EC (now Art 5 of Directive 2002/58/EC) to curb state surveillance.
This the British Government now deems not fit for purpose in an age of bulk surveillance (though it is argued here that, thanks to the purposive nature of EU law, it remains effective – and has hence been broken by the UK Government). The Government has put new legislation through Parliament (the “Snooper’s Charter”) to give itself wider surveillance powers (or legalise what it has been doing already). This new legislation would probably be illegal under EU law.
So is it really the case that Parliament would let the Government solve its problem by giving it a power simply to sweep away legislation like this or amend it as it thinks fit? It seems inconceivable – but if not, great chunks of British legislation, on the statute books at the behest of the EU, would stay there and remain effective until the Government got round to producing, bit-by-bit, new primary legislation.
At the very least, amendments would be needed to make clear the law is overseen now by UK institutions, not EU ones. And something would have to be done to establish whether court judgments under the Marleasing principle would continue to carry weight and hence whether the Marleasing principle would be applicable in future. Brexiters would say no (as Howe very clearly did) since we, apparently, voted out of the EU to get rid of any such influence over our courts as well as over our Parliament.
Regulations: These are issued by the European Commission and are expected to become part of member states’ law directly. So there is no equivalent UK legislation amenable to repeal or amendment by the British Parliament. It is law recognised in the British courts as in all EU member states’ courts. It is also law that is likely to have been clarified by the Court of Justice of the European Union, either through cases brought to the Luxembourg court or through the process of “preliminary reference” (Article 267 TFEU) whereby a British court looking at a claim under EU law can refer a question to the CJEU regarding interpretation of the directly effective EU law.
“Direct effect” means the law gives rights (vis-à-vis the state) directly to individuals – the case with EU Regulations in general as well as many Directives and rights under the EU treaties. A preliminary ruling is given by the CJEU (preliminary in the sense of being before the national judge decides the case rather than on appeal) and this should ensure there is no divergence between member states on how directly effective law functions.
So what would happen to Regulations when Britain exits the EU? Presumably they would not just fall – and presumably they would be added to all the law that becomes “British” in the Great Repeal Bill. That seems likely since they provide important procedures and protections, for example that companies trading in the EU must follow. Take Boris Johnson’s notorious “bendy bananas” regulation No 2257/94. This is not at all about bendiness or the number of fingers per bunch that can be displayed in shops but is intended to ensure wholesalers ship bananas so they remain firm and intact without rotting. If this Regulation disappeared does that mean Britain could be flooded with all the mouldy bananas that the rest of the EU refused to take?
Or take, arbitrarily, Regulation No 181/2011, which gives bus and coach travellers certain rights such as compensation for delayed journeys. Is this just the sort of red tape Brexiters want rid of, and the sooner the better? Or might consumers (including many of the 52% who voted Brexit) be rather pleased that they can get free snacks, meals and up to 2 nights’ hotel accommodation “in situations of cancellation or following a delay of more than 90 minutes in the case of a journey of more than 3 hours”?
Treaty rights: Many legal rights people in Britain have come directly from the foundational EU treaties, particularly the Treaty of the European Union (TEU) and the Treaty of the Functioning of the European Union (TFEU). For example “Equal pay for equal work is one of the European Union’s founding principles, embedded in the Treaties since 1957” (EU Treaty and Legislation) – now enshrined in Article 157 TFEU. Although Britain has had an Equal Pay Act since 1970 (incorporated into the Equality Act 2010), nevertheless much of the interpretation of what constitutes equal pay has come from judicial decisions on EU principles – in Britain and in Luxembourg.
Decisions are made by the European Council and Parliament combined and may be directed at a member state or against individuals and companies. They are binding on those they are directed towards. Many are used for EU administrative and financial matters and as such will not affect Britain after Brexit. But they are also issued to establish intra-EU cooperation, for example on health or security matters. An example is Decision No 1082/2013/EU on serious cross-border threats to health. This “lays down rules on epidemiological surveillance, monitoring, early warning of, and combating serious cross-border threats to health, including preparedness and response planning related to those activities, in order to coordinate and complement national policies”.
It covers environmental threats as well as those from biotoxins and pandemics and allows coordination of epidemiological surveillance – in effect monitoring health threats. And it establishes an Early Warning and Response System to deal with cross-border threats. But once Britain’s out, is that it? Can Britain stop exchanging information and expect to receive none when toxic clouds start billowing across the North Sea?
Brexiters may say, of course this is just the sort of area where we would cooperate, (as on greenhouse gases; see Decision No 406/2009) but under what authority? Will this Decision still apply to Britain by being encompassed within the Great Repeal Act (as it will become)? And if not, how close to the top of the priority list will this particular matter be for whichever minister gets the power to opt back in to the system – or has to renegotiate a bipartisan treaty (since the Decision is in effect a treaty without the full bureaucracy and wrangling that would be involved to get a deal among 28 signatories separately)?
Judicial decisions There are whole swathes of EU law in force in Britain as a result of judicial decisions, whether by UK judges or in particular as a result of cases in the Court of Justice of the European Union (CJEU) in Luxembourg. In the Unreliable Evidence broadcast Lord Falconer gave the example of who counts as a comparator for equal pay calculations (public sector).
European case law forms part of the legal acquis of the EU – the whole body of common rights and obligations binding on all member states. But it is not in legislation and hence cannot be repealed, and nor does it simply drop out of the picture when Britain leaves since courts should, to maintain legal consistency, continue to recognise the legal principles of past cases.
So what will the Government do about it? Will it somehow be included in UK law thanks to the Great Repeal Bill? Will the Government then be empowered to issue edicts to the judges to no longer take account of past EU Court of Justice cases – even those cases that have entered UK case law? Or tell judges which to take on board and which to jettison? If the Government does that, won’t that be thoroughly unconstitutional? An offence against separation of powers and the British tradition that the executive should not interfere with the judiciary?
Has anyone in the Government thought about any of this? If so, I missed the press release.
Here are the Governments explanatory notes on the European Union (Withdrawal) Bill
• Martin Howe makes his position clear in this piece for Politeia (pdf)
• George Peretz QC raises concerns in this pre-referendum piece: Henry VIII and the perils of Brexit (Henry VIII is a reference to so-called Henry the Eighth powers sometimes given to ministers to change substantive elements of primary legislation – often seen as the most egregious form of statutory instrument. See for example: Ken Clarke gets his Henry VIII clause into judicial appointments.
• Here’s a historical look at Henry VIII powers: Don’t blame Henry
• There’s handy material on the White Paper on Law and Lawyers here
• Here’s a piece on why, presumably, Brexiters are happy if Britain no longer recognises the European Arrest warrant: EAW perceived problems
• A brief piece on how Henry VIII clauses will be used to repeal EU laws byt Rights Info is here.
On Article 157 this UK government briefing notes:
“Article 157 can have significant practical implications in the UK. It has direct effect and can be relied upon by individuals whether their employer is a public body or private organisation. UK law must be interpreted in accordance with its provisions. Ordinarily employees achieve this by bringing their claim under the UK provisions but argue that these have to be interpreted in accordance with Article 157 provisions … there are some critical differences between the provisions in Article 157 and the [British] Act.”
Treaty on the Functioning of the European Union
Article 288 (formerly Article 249 TEC).
To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.
A useful piece here from Norton Rose Fulbright on the legal route for Brexit