Taming of Control: the Repeal Bill

Kenneth Armstrong, Professor of European Law at Cambridge’s Faculty of Law, takes us through the technical and constitutional challenges facing the Repeal Bill: including ‘Henry VIII’ clauses, encroachment on the devolved administrations, and the lingering of so-called ‘red tape’. Does the Bill provide vital continuity, or just an incomplete Brexit?

The following is adapted from Brexit Time: Leaving the EU — Why, How and When? published by Cambridge University Press in June 2017.

The rhetoric of taking control which surrounded the referendum vote for the UK to leave the EU spoke to a renewed internationalism and nationalism. Yet, change which voters might have expected to follow Brexit seems unlikely to transpire in the short to medium term. A Repeal Bill is to be introduced to Parliament with the aim of repealing the European Communities Act 1972 (and other enactments that will no longer be required), but also with the goal of preserving the effects of EU law within domestic law.

In her Lancaster House speech, Theresa May stated:

‘The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.’

The idea that things will stay the same on ‘Brexit Day’ is intended, no doubt, to be reassuring and to offer ‘certainty’ to those anxious about how Brexit will impact on their lives and businesses. However, if the point of voting for the UK to leave the EU was that things would be different outside the EU, then the Government’s intentions may be anything but reassuring to ‘Leave’ voters. Unsurprisingly, some have argued that the retention of EU law in domestic law after Brexit should be time-limited through a ‘sunset clause’ in the Repeal Bill.

But there is an important legal point about what can and should remain the same. EU law is not like domestic law inasmuch as it aims to ensure that obstacles to free movement are removed if they are discriminatory or otherwise create restrictions which cannot be justified. This legal framework assumes membership of the EU and gives effect to its aims. It simply does not make sense to replicate this in UK law after Brexit.

Where EU law is more like domestic law — indeed, where it has been adopted to take over individual state’s responsibilities to regulate in the public interest in areas of worker, environmental, health and safety, social and consumer protection — then there is more reason to consider retaining or replicating this in domestic law. Paradoxically, it will be all the regulatory aspects of EU law that will be protected in UK law after Brexit more than the deregulatory, liberalisation aspects. In other words, what will be maintained within, or incorporated into, UK law will be highly asymmetric and will emphasise giving domestic legal effect to the much-derided ‘Brussels red tape’.

Merely replicating EU rules (the ‘acquis’) will not be enough. Moreover, the means of achieving all of this will expose the UK’s own political and legal system to the type of critical evaluation about its density and democratic quality as was applied to EU law during the UK’s membership.

One of the unique qualities of the EU as an international organisation is that its rules are not just to be found in the treaties which establish the organisation or which that organisation enforces like the WTO agreements. It has the capacity to generate rules. This is the world of EU regulations and directives. In legal terms, regulations share similar qualities to treaty provisions: they can be applied directly in national law without the need for domestic legislation. Once the UK leaves the EU, this supply of law within UK law will be stopped. Measures will need to be taken to incorporate these directly applicable rules into UK law and the White Paper states that:

‘The Government’s general approach to preserving EU law is to ensure that all EU laws which are directly applicable in the UK (such as EU regulations) … remain part of domestic law on the day we leave the EU.’

EU directives pose a different technical challenge. They are very different legal instruments from regulations in that they require Member States to introduce or amend national laws to meet the requirements specified in the directives. In one sense that ought to make the Government’s task much easier in that UK law has already transposed directives into UK law. It does so via primary legislation enacted by Parliament but also by the mechanism provided in section 2(4) of the 1972 Act. The difficulty is that once the 1972 Act is repealed, there will no longer be a legal basis in primary law for all the statutory instruments adopted under the 1972 Act and so they will no longer be valid. Accordingly, one of the key tasks of the Repeal Bill and any other Brexit-related legislation will be to create the necessary power in primary law to retain these statutory instruments in force.

State opening of Parliament 2017

However, the challenge facing the Repeal Bill is not simply technical it is constitutional. Given the scale of domesticating EU law into UK law, there will be significant pressure to avoid time-consuming primary legislation and, instead, to use the mechanism of delegating powers to ministers to adopt regulations. Delegated powers require parliamentary supervision and it would be an irony of taking back control over laws for Brexit to domesticate EU law, only then to shield that rule-making from parliamentary scrutiny. Nonetheless, the scale of the operation may make meaningful oversight difficult to achieve. Recent evidence shows how little parliamentary time is devoted to debating delegated rules. According to the Hansard Society, in the session 2015–16, MPs spent less than eight hours debating statutory instruments in the Commons Chamber.

Moreover, so-called ‘Henry VIII’ clauses in statutes threaten to undermine parliamentary control over law-making as well as the rule of law. Indeed, one of the complaints about the operation of the European Communities Act 1972 was precisely that it empowered ministers to amend laws passed by the UK parliament in order to give continuing effect to EU law. The point is to highlight the risk that it may not be Parliament deciding on which laws to change after ‘full scrutiny’ and ‘Parliamentary debate’, but rather ministers exercising the sort of executive power which voters appeared to reject when they complained about the powers of the European Commission.

There is also an important devolution dimension to the constitutional challenge of domesticating EU law. The Repeal Bill — as a legislative act of the Westminster Parliament — will include provisions which will have an impact on the exercise of devolved legislative competences.

Scottish First Minister Nicola Sturgeon giving a press conference on Brexit.

By constitutional convention — the Sewel Convention — Westminster is obliged to seek the consent of the devolved parliaments before it legislates on matters within devolved competence and so it was expected that Legislative Consent Motions (LCM) would need to be passed. However, the Sewel Convention’s formal reach is only in respect of primary legislation passed by Westminster like the Repeal Bill itself, and not the delegated rules enacted through it or other primary legislation. The risk might then be that UK ministers could exercise delegated rule-making powers in areas within the competence of the devolved administrations. This is an obvious gap in the Sewel framework and one which Brexit exposes.

Time will not stop at the moment the UK leaves the EU. In the days, weeks and months afterwards, new legislation, delegated rules and implementing measures will be adopted at EU-level which will change the acquis. The extent to which UK law will remain in conformity with EU law after Brexit Day is unclear but what is particularly significant is that — unlike maintaining the acquis to which the UK is already bound as a Member State — the domestication of future EU law would entail adapting UK law to rules adopted when it has ceased to be a Member State. This would not merely keep UK law the same, it would be to continue to keep UK law compliant with EU law and without any of the rights of representation and influence over the content of those rules which the UK enjoyed while it was a Member State.

It is not enough to make UK law formally symmetrical to EU law on Brexit Day. Laws are made effective by the administrative apparatus that puts it into practice. With or without an agreement between the UK and the EU, businesses will need to know who they need to approach for authorizations to carry out their activities and whether these will be recognised in EU states. And they will also want to know what mechanisms will exist to resolve disputes. It is unclear what form any future dispute-resolution mechanism with the EU will take, and no enlightenment can be found in the White Paper. But it is important to keep in mind that the administrative system of the EU is itself a means of managing disputes and conflicts in the first instance.

There is also the vital question of the authoritative interpretation of law and the role of UK courts after Brexit. Leaving the jurisdiction of the EU courts is a central plank of Brexit. There will be no possibility for UK courts to seek authoritative interpretations of the acquis from the Court of Justice under the preliminary ruling mechanism. But it would seem odd to take strenuous efforts to ensure the continued application of EU law in the UK — unless and until Parliament decides otherwise — only then to allow the interpretation of that law by UK courts to drift. If there is to be a homogeneity of interpretation as well as a symmetry of rules, UK courts will have to have regard to the rulings of the EU courts.

The debate about whether Brexit will be hard or soft is a question of how much things will be the same or different for the UK after Brexit. For voters who wanted the UK to remain in the EU, the risk was how much would change after the UK leaves. For those who wanted the UK to leave the EU, the hope was that, indeed, much would change. Both sets of voters may be surprised at the efforts being placed on seeking continuity in governance. For Remain voters, while this may afford some comfort, it will simply reinforce the view that the better way of keeping things the same was for the UK to remain a Member State of the EU. For Leave voters, the outcome may be more ambiguous.

On the one hand, post-Brexit continuity would seem to be rebuttal of ‘Project Fear’ claims about the risks from leaving the EU. On the other hand, the taming of control rather than the taking of control may well lead some to conclude that Brexit is an incomplete political project. For them, Brexit Time keeps ticking.

Brexit Time: Leaving the EU — Why, How and When? is available now from Cambridge University Press.