John Bell, célèbre professeur de Droit à Cambridge et bien connu en France en raison de ses études de droit comparé franco-britannique, nous donne son point de vue critique sur le projet de loi de retrait du Royaume-Uni de l’Union européenne. Nous sommes particulièrement heureux de pouvoir l’accueillir parmi les contributeurs du site. Rappelons qu’il a déjà publié à la Revue française de Droit administratif une étude remarquable sur le jugement Miller de la Cour suprême.

The European Union (Withdrawal) Bill

So much for Brexit returning powers to Parliament. The European Union (Withdrawal) Bill provides almost dictator powers to a Minister of the Crown. Under Schedule 7, para. 3, a Minister is given the power to make regulations, if he claims it is urgent for achieving an effective law on Brexit day. Such regulations may do what could otherwise be done by Act of Parliament (cl. 7(4)). They can be made without a draft being presented to Parliament and without parliamentary approval. They remain in force for a month before they need approval. These provisions are found in the Schedule on “Scrutiny of Powers”, but no scrutiny is actually provided.

That is merely a sample of the sweeping powers which the UK Government thinks it needs in order to make Brexit happen in an orderly way. The Government estimates that there are some 12,000 pieces of directly effective EU legislation which have to be transposed into UK law. Whereas Treaty provisions will lapse, and Directives are already implemented into UK law, the vast number of regulations and subordinate EU rule-making will have to continue to govern routine matters such as the quality of food, consumer safety and so on. So they have to be made part of UK law. To achieve this the UK Government proposes to give its ministers powers to  decide whether and how to continue these EU rules in force post-Brexit by making UK regulations on or before exit day (currently 29 March 2019). This is a large exercise, since at least 1000 EU regulations will have to be amended before they are transposed. All this will happen through ministerial decree with very limited parliamentary scrutiny. Indeed, very little attention is given in the Bill to the scrutiny process. The Bill seems to assume that the normal scrutiny process can cope. Currently, the House of Lords Secondary Legislation Scrutiny Committee examines the policy issues of delegated legislation. In the Session 2016-17, it made 32 reports on legislation requiring serious examination.  The Joint Committee on Statutory Instruments reviews the legal drafting of delegated legislation. In the session 2016-17, it made reports on 60 pieces of delegated legislation and considered  about 10-12 instruments each month. Neither process has the scale of operation capable of dealing with the number of regulations which will have to be considered in the 12 months from the passage of the Bill until exit day. Without radical change in parliamentary procedure, Parliament will be left having to accept more or less everything the Government produces.

The approach of the European Union(Withdrawal) Bill has been criticised as a power grab by Westminster/Whitehall against the devolved assemblies of Scotland, Wales and Northern Ireland.  Contrary to what was suggested by the Constitution Committee and by the Welsh Assembly, there has been no expansion of the competence of the devolved assemblies. The structure adopted is that the supremacy of EU law as a field outside the competence of the devolved assemblies is replaced by the supremacy of Whitehall-controlled “retained EU law”. The devolved assemblies are not allowed to modify retained EU law unless this is authorised by Order in Council made by a Minister of the Crown. For instance, s. 80 of the Government of Wales Act 2006 is amended to exclude competence of the Welsh Assembly to make legislation in respect of “retained EU law” (Schedule 3, para. 2 and clause 11). Corresponding provisions are made for the other devolved assemblies.

Clause 6(7) defines retained EU law to include directly effective regulations which have been transposed into UK law under the Bill, and case law of the CJEU and general principles of EU law both fixed in content on the day prior to exit day. This effectively creates a form of zombie EU law – a law which has died but continues to exercise an influence over what the Assembly can do. The Assembly is going to need a textbook which states what was EU law on 29 March 2019 in order to carry out its functions not merely during the two years post-Brexit for which the Bill authorises powers, but for years to come beyond that. The idea that EU law in this state continues to govern devolution creates a distortion of the balance of powers between Whitehall/Westminster and devolved territories. In effect, the Cardiff Assembly will have a Whitehall zombie present to regulate the exercise of its powers, unless Whitehall consents to confer more powers within the two years of the life of the European Union (Withdrawal) Act.  Para. 69 of the Memorandum on Delegated Powers provides an inadequate justification for this effective replacement of Brussels by Westminster and Whitehall.

The extent of Westminster control would not be so bad, if the Bill did not also show a poor grasp of what is EU law. It retains “EU case law”- the decisions of the CJEU which remain binding on the courts in the UK, except the Supreme Court. But, of course, case law is not a binding source of EU law (A. Arnull, The European Union and its Court of Justice, 2nd ed. (Oxford 2006), ch. 17). So, in effect,CJEU case law becomes more binding after Brexit (thanks to the Bill) than it is before! Secondly, Schedule 1 and clause 6 invent the concept of ‘retained EU general principles of law’. According to Laenerts and Guttierez (K. Laenerts and J.A. Gutierrez-Fons, ‘The Role of General Principles of EU Law’ in A. Arnull et al., A Constitutional Order of States (Hart Publishing 2011), 184), ‘the Charter provides a sound legal basis for the establishment of general principles’. Yet clause 6 (7), para. (b), seems to define “retained EU general principles of law” as excluding the Charter (which ceases to have effect by virtue of clause 5(4)). The function of general principles was to complete the provisions on rights prior to the legal effect given to the Charter by the Lisbon Treaty. This is seen in the case law such as Mangold and Kücükdeveci. Does the legislation intend to repeal the Charter and the re-introduce it by the back door? Furthermore, general principles of law fill gaps in EU law taken as a whole. Once EU law has been dismembered by removing the Treaties from “retained EU law”, it is not clear what coherently remains to be applied on an ongoing basis in the UK courts. The authors of the Bill need a clearer idea of what they are retaining, before it can sensibly be used as a constraint on either the UK courts  or the devolved assemblies.

Like much in the Brexit process, the European Union (Withdrawal) Bill betrays a lack of preparation and a muddled set of policy objectives. The Bill is hard to read and its internal logic is difficult to grasp.

John Bell

Professor of Law

University of Cambridge – Pembroke College

Director of Center for Public Law