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Bonfire of EU rights: Bring on the Brexit bureaucrats!

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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 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? Read the rest of this entry

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O’Brien loses Court of Appeal case on judicial pensions backdating

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For latest Supreme Court update on O’Brien, see the note at the end of this piece regarding the reference to the European Court of Justice

A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

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