The future of Europe: rule of law must not be compromised in Brexit Bill

Whilst the UK Government fixes its attention on withdrawal negotiations with the European Union, the UK Parliament is grappling with the legislation, the European Union (Withdrawal) Bill. According to legal experts the legislation is ‘a legal revolution’. But, outside of the Westminster bubble, lawyers and the UK’s top judges have warned that the 62-page Bill does not uphold the rule of law.

In November, Lord Neuberger, the former President of the UK’s Supreme Court, made his concerns public, pointing out an irony that the Brexit Bill, ‘which is intended to strengthen the UK Parliament’s hand, may actually weaken it’, handing over more power to the Government on the one hand and to the judiciary on the other. He also made it clear that this is not power that the judiciary, for its part, wants because it could undermine judges’ independence.

A new 26-member expert working group has been set up by the Bingham Centre for the Rule of Law and University College London to consider these kinds of rule of law implications, and to bring them to the attention of Parliament and the Government as the Bill is being debated. Murray Hunt is Director of the Bingham Centre: ‘Because of our regulatory enmeshment with the EU, this Bill is nothing short of a legal revolution,’ he tells Global Insight. ‘It’s like ripping up the constitution – if we had one.’

The Brexit Bill, just 19 clauses and nine schedules, is the legal instrument that brings to an end the supremacy of EU law in the UK and repeals the European Communities Act 1972. The Bill freezes EU law on ‘exit day’: any EU-derived domestic laws and any EU law that has direct effect in UK law at that point in time, which is 30 March 2019, will stay in UK law. Any ‘enactment or rule of law passed or made on or after exit day’ will not be ‘supreme’ in the UK (clause 5(1)). But these rather simple statements raise a huge number of constitutional and rule of law questions (as well as myriad practical ones).

One of the main concerns is the scope of delegated powers given to ministers in the Bill. As a result of the breadth and depth of that ‘enmeshment’ between the EU and UK’s domestic legislation, there will be any number of pieces of secondary legislation such as statutory instruments and thousands of specific regulations that will need to be updated and revised in light of these ‘retained EU laws’ that the Bill envisages. For instance, there may be rules on the reciprocity of professional qualifications or certain environmental protections, as well as the rules governing agencies that set, report on, and enforce those protections.

No one anticipates that each and every element of those ‘retained EU laws’ can be scrutinised and revised in this single Brexit Bill. Instead, the Government, in clause 7, has granted to UK ministers sweeping powers to make legal changes they consider ‘appropriate’ to correct any ‘deficiencies’ or any ‘operational failures’ in those retained EU laws by use of subordinate legislation.  

It is known as a ‘Henry VIII clause’ as it gives the power to make legislation by simply proclaiming it. While it could be seen as a pragmatic response, from a rule of law perspective, the extent of these powers is, in reality, breathtaking.

Sir Stephen Laws KCB QC is former First Parliamentary Counsel and a member of the expert working group. ‘Rule of law principles suggest that legislation should prevent the abuse of powers and provide legal certainty,’ he says. ‘But this Bill could, potentially, allow ministers to introduce subordinate legislation which is not just making technical changes but actually involves questions of policy. Such subordinate legislation should be put before parliament. It is necessary for the Government to provide greater reassurance that it will not abuse these wider powers.’

Another key issue is the role of the Court of Justice of the European Union (CJEU) after Brexit. This is currently set out in clause 6 which states that the UK’s national courts ‘need not have regard to anything done on or after exit day by the European Court [CJEU], another EU entity or the EU but may do so if it considers it appropriate to do so.’ This means that UK judges will have to make what amounts to decisions on whether to consider judgments of the CJEU post-Brexit.

This is just the kind of handing over of decision-making to the judiciary that Lord Neuberger flagged. From a rule of law perspective, the challenge is whether or not clause 6 provides the requisite legal certainty that legislation should have.

Professor John McEldowney of the University of Warwick is a member of the working group. ‘Businesses and individuals are going to live with these retained EU laws,’ he says. ‘When disputes arise, judges need to be given as much guidance as possible in the text of the Bill as to how to interpret laws. We need clarity and the legislation must be fit for purpose.’

At the time of writing, the UK Government has conceded that the CJEU could have a role in interpreting any laws relating to citizen rights in its joint report with the EU published in early December, and the Brexit Bill is due to move to the House of Lords for further scrutiny.