May’s March towards Brexit: some comments on the potential legal implications of the UK’s ‘Great Repeal Bill’
By Oliver Garner
‘Brexit means Brexit’ means March
We have learned two important things about what ‘Brexit means Brexit’ means from the Conservative party conference last week: (1) Theresa May’s government will trigger Article 50 TEU in March 2017 at the latest; and (2) a ‘Great Repeal Bill’ will be proposed in the next Queen’s speech which will repeal the European Communities Act 1972 and enshrine all EU law into domestic law (at least for the time being). This post will focus on some potential legal implications of the ‘Great Repeal’ of EU law in the United Kingdom. It will consider how exactly EU Directives and Regulations will be implemented into UK law, before considering the substantive issue of whether such implementation means that EU citizens in the UK will retain their ‘acquired rights’ to residence. The argument will be that enacting the ‘Great Reform Bill’ will be a far more difficult task for the UK government and Parliament than its announcement suggests. Furthermore, without extensive amendments, such wholesale transposition could undermine the effectiveness of the withdrawal from the Union legal order.
The announcement of a March Article 50 notification does not provide answers to all the vagaries of the legal procedure of Article 50 (including exactly how notification will be sent, and which government minister will be responsible). However, it does provide political certainty as to the timeframe of Brexit, barring the notification being blocked by the outcome of the upcoming constitutional challenge to the government’s authority to trigger Article 50 without the consent of Parliament. Under Article 50(3), if a withdrawal treaty is not concluded, and if there is no unanimous agreement to extend the time-frame of negotiations, the United Kingdom will cease to be a Member State of the European Union by March 2019.
Therefore, even though the ‘Great Repeal Bill’ (I will resist the temptation to refer to it as the GBR GRB) will be proposed at the Queen’s speech in May 2017, the repeal of the European Communities Act 1972 will only come into effect following a withdrawal from the Union. There are two observations on this point. (1) This does not endorse the calls of the ‘hard’ Brexiteers to enact withdrawal simply through repeal of the ECA 1972. Instead, repeal will be interwoven with the Article 50 procedure. This means that the United Kingdom will respect its international law obligation as a signatory to the Treaty on European Union by using the lex specialis withdrawal procedure contained therein. (2) The explicit repeal is in accordance with the English judicial dicta that there are ‘constitutional statutes’ which cannot be repealed impliedly but instead require an explicit repealing Act of Parliament. The interweaving with Article 50 negotiations provides both the UK House of Lords and House of Commons two years in which to debate and shape the content of the Act. Arguably, however, the future effects of the Repeal Bill are at this point just as uncertain as the future relationship of the UK with the European Union. The right-wing media have greeted May’s announcement with jingoistic fanfare, whereas left-wing commentators have reacted solemnly with regard to the fragile status that the Bill may imply for social protection. Although the incorporation of EU law into UK law means that the predicted ‘bonfire’ of social rights may well not occur, the ability for future governments to gradually ‘unpick’ legislation in the future means we may see a more slow-burning social deregulation in the United Kingdom.
The status of EU Directives and Regulations following withdrawal
Article 288 TFEU states that EU Directives are ‘binding as to the result to be achieved’ but it is up to each Member State to choose the ‘choice of form and methods’. Therefore, the content of this EU law is already implemented into UK law (for example the Working Time Regulations 1998 incorporating the terms of Directive 2003/88/EC). Ostensibly, this legislation should remain in force despite the repeal of the ECA 1972 due to its status as legitimately promulgated domestic legislation. However, with respect to other national implementations of EU Directives a point of constitutional detail arises: The United Kingdom has often decided to implement its Directive obligations by means of Ministers or Departments making secondary legislation (usually in the form of ‘Regulations’, which should not be confused with EU Regulations, infra) in accordance with the statutory power conferred by Section 2(2) of the European Communities Act 1972. The issue therefore arises whether the repeal of the European Communities Act 1972, which will remove the authority to make such Regulations, might affect the validity of the Regulations themselves.
On a point of expedience and efficacy, it may be argued that it is desirable to simply maintain these Regulations in force rather than having to go through the lengthy bicameral process of promulgating Acts of Parliament. However, from the perspective of legitimate authority as vested in the representative legislative body of Parliament, it may be argued that it is desirable that these provisions are debated and duly enacted as opposed to simply maintaining legislation that was adopted without such debate on the basis of a now-extinct statutory power. Initial discussion of the Bill suggests that it will include powers analogous to ECA 1972 s.2(2) for the purpose of making changes to secondary legislation. Therefore, this could be used as a flexible base for ensuring that the UK Regulations which have implemented EU Directives have a legitimate base in a primary statute.
The concerns of left-wing commentators with regard to EU Directives implemented in UK law are prompted by the fact that the UK’s return to a ‘sovereign’ status means that there will no longer be any supranational obligation to retain law that originates from Directives. Rebecca Zahn has provided a detailed discussion on this blog of what the implications of this could be for UK workers. After withdrawal, individuals will no longer be able to enforce these rights before the supranational Court of Justice of the European Union. That being said, if governmental actions repealing such legislation violate the UK’s obligations under the European Convention of Human Rights, then individuals will still be able to claim under the Human Rights Act 1998, and if domestic procedures are exhausted bring their claim to the Court in Strasbourg. Therefore, the price that could be paid by the UK population for its vote to ‘take back control’ is that such control may be wielded by political actors who do not intend to retain the substance of EU Directives which help guarantee dignity and flourishing in social life.
As opposed to Directives, Article 288 outlines that EU law in the form of Regulations is binding in its entirety and directly applicable in all Member States’ without the need for implementing measures. Therefore, the status of this EU law in the United Kingdom following withdrawal is less clear. These norms have effect in the United Kingdom’s legal order(s) through the bridge of the enabling legislation of the ECA 1972 – this is because international law obligations are not directly applicable in the ‘dualist’ UK as opposed to ‘monist’ countries such as The Netherlands or Belgium. With the explicit repeal of this ‘constitutional statute’, EU Regulations will cease to be applicable in the domestic legal order.
The UK government therefore seems to have two choices with regard to these EU Regulations: either engage in the painstaking and time-consuming process of cataloguing all of the EU Regulations which are effective in the UK’s legal order and create either primary or secondary legislation to incorporate them; or instead declare that these Regulations are directly applicable in the UK’s legal order as international law. (Of course, a third option may be to ignore Regulations altogether and hope that the British public does not notice the regulatory black hole caused by their instant de-application. Although apparently far-fetched, such a botched approach does not seem entirely beyond the realms of possibility when one considers the dearth of knowledge regarding the EU displayed during the referendum campaign).
The second option appears problematic as the UK would be claiming that law stemming from an international treaty to which they are no longer a party is effective within its legal order. Of course, if the UK were to take the ‘off the shelf’ option of joining the EEA, then this problem would be at least partially solved: it would be under an obligation to incorporate relevant Directives and Regulations that fall under the areas covered by the EEA Agreement as a result of the principle of ‘homogeneity’. However, the current tilt of the government towards a ‘hard Brexit’ makes such accession unlikely. Therefore, a potential solution to this regulatory problem is that the withdrawal treaty concluded under Article 50 and/or a potential ‘future relations treaty’ concluded in the form of an Association Agreement could make provision for EU Regulations promulgated up to the date of the United Kingdom’s withdrawal to continue to be binding in the domestic legal order until such date as the UK declares that they are no longer in force. This would also leave open the possibility for the UK legislature to create legislation to incorporate what it regards as the most important EU Regulations.
Will the acquired rights of EU citizens living in the UK be protected?
Aside from the question of whether rights deriving from EU legislation will be protected for UK citizens, another legal issue arising from the announcement of the Great Repeal Bill is whether the ‘acquired rights’ of EU citizens within the United Kingdom will be retained. Arguably, this issue indicates the necessity of amending certain pieces of legislation of EU origin, rather than simply implementing them wholesale, in order to preserve their effects after withdrawal (and before their potential future repeal).
Currently, EU citizens are exempted from the provisions of the Immigration Act 1988 by section 7(1), which states: “[a] person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do by virtue of an enforceable Community [Union] rights or of any provisions made under section 2(2) of the European Communities Act 1972”. The terms of the ‘Citizenship Directive’ of the EU – which outlines the conditions for EU citizens to enter, leave, reside in, and access social benefits from other Member States – are precisely implemented under such ‘provisions made under section 2(2) of the European Communities Act 1972’: the Immigration (European Economic Area) Regulations 2006 and their amendment in 2013.
If we suppose that the provisions of the 2006 and 2013 Regulations are simply transposed into an Act of Parliament as part of the government policy of implementing EU law into UK law – thus avoiding the aforementioned constitutional debate over the legitimacy of the implementing (UK) Regulations remaining in force – then ostensibly the rights of qualifying EU citizens to remain in the country following withdrawal will be preserved. Indeed, the argument could be taken further than simply retaining the text of the 2006 Regulations would mean that any qualifying EEA national would retain their previous rights of admission, residence, and access to social benefits. For example, section 11(1) of the 2006 Regulations states that: “An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card issued by an EEA state”.
Such a future situation of entirely open access to the territory of the United Kingdom, although clearly of huge benefit to EU citizens, would seem to fly entirely in the face of the promises made by the leave campaigners during the referendum campaign to take back control of national immigration policy. Indeed, it would serve to effectively implement the obligations of the EEA Agreement de facto even if the UK did not join, but without the reciprocal obligation for EU and EEA states to grant access and associated rights to UK citizens. Unless Theresa May has pulled off one of the great political ‘sleeper agent’ acts of all time, we can assume that entirely maintaining the UK’s obligations to free movement and establishment for EU and EEA citizens was not her intention when announcing the implementation of EU law into UK law. For this reason, it can be safely concluded that in order to enact the Great Repeal Bill, it will not only be necessary for Parliament to debate the terms of the future Act, but also to consider in great detail what amendments to existing law may be necessary in order to secure an effective withdrawal from the European Union legal order.
Conclusion: the tip of the iceberg
This post has sought to show that Theresa May’s announcement of the Great Repeal Bill is only the tip of the iceberg in the legal complexity of a Member State extricating itself from the EU Treaties and de-applying EU law norms in its own legal order. Much has been made about the complexity for the United Kingdom of negotiating its external relations with the EU and the rest of the world in the wake of Brexit. However, as the Repeal Bill makes its way through Parliament, perhaps an even greater level of complexity will become increasingly evident much closer to home.
Kenneth Armstrong has pointed out (http://bit.ly/2dRtWNL) that in principle even the Treaties are to be incorporated into national law. But since they generally concern mutual obligations, it is hard to see how they can be, except perhaps for a few Articles here and there.
The obligations upon Member States in EU Regulations are perforce expressed in terms like ‘A Member State shall…’. If they were to be transposed without amendment, these obligations would disappear, since we will no longer be a Member State.
It is possible to envisage horizontal adaptions to provide that – to take this example – ‘a Member State shall…’ shall mean ‘the UK shall…’ or some such. I suspect this is easier suggested than done, in the detail.
Where the EU Regulations create obligations with regard to other Member States, then while we could amend the legislation to preserve our obligations to r-EU, we could not preserve r-EU’s obligations to us, since we will no longer be another Member State, from their point of view.
An EU Regulation like 764/2008 ‘on the application of certain national technical rules to products lawfully marketed in another Member State’ – ie the Cassis de Dijon principle brought into the New Legislative Framework, and a central plank of the Single Market I think – falls into this category, as its title shows.
Further, this Regulation refers to what are now Article 34 and 36 TFEU, which concern the mutual obligation to allow free movement of goods, and which therefore cannot be domesticated unilaterally. Also, like many other Regulations, it gives a role to the Commission, which presumably would be problematic after Brexit.