Brexit: white paper, muddy waters

Wherever possible, the same rules and laws apply on the day after the UK leaves the European Union as before. So states the Government's white paper published on 30 March 2017, the day after Prime Minister Theresa May formally gave notice under article 50 of the Treaty on European Union of the UK's decision to leave.

Commentary published to date indicates that this apparently simple statement is fraught with complexities, many of which the Government does not yet appear to have thought through. Serious questions also exist over the width of the powers to make delegated legislation that the Government says will be necessary in order to achieve a smooth legal transition in time.

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The white paper sets out the approach that will be adopted in the Great Repeal Bill, which will be introduced to Parliament following the Queen's speech this spring.

That bill, “spectacularly misleadingly dubbed”, in the words of Professor Mark Elliot, will in essence provide for the following, as summarised in the white paper:

• it will convert directly-applicable EU law (EU regulations) into UK law;
• it will preserve all the laws made in the UK to implement EU obligations;
• rights in the EU treaties that can be relied on directly in court by an individual will continue to be available in UK law;
• historic CJEU case law will be given the same binding, or precedent, status in UK courts as decisions of the UK Supreme Court – with the court therefore having the same power to depart from previous decisions in exceptional circumstances.

As Elliot comments, “Given that it is imperative to avoid a sharp legal rupture on Brexit Day, substantial parts of EU law will need to be retained post-Brexit, and it is the preservation, far from the repeal, of EU law that the bill will set out to accomplish.”

Echoes of the Tudors

At the same time, many adaptations will be necessary where existing legislation presupposes UK membership of the EU, or participation in EU-related organisations. Thus the bill “will create a power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU” (para 1.15). It is the extent of these powers – dubbed “Henry VIII clauses” in reference to the sweeping lawmaking powers allowed to that monarch by the Parliament of his day – to be exercised by regulations made by ministers, and whether there would be any effective parliamentary oversight, that constitutes the first major area of controversy following the white paper.

At para 3.5 the paper states: “It is clear that a very significant proportion of EU-derived law for which Government departments are responsible contains some provisions that will not function appropriately if EU law is simply preserved.” This applies equally to legislation falling within devolved responsibilities, and it is proposed that both UK and devolved ministers will have “a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The paper does recognise certain constraints: “Crucially, we will ensure that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU. Additionally, we will consider the constraints placed on the delegated power in s 2 of the European Communities Act to assess whether similar constraints may be suitable for the new power, for example preventing the power from being used to make retrospective provision or impose taxation” (para 3.17)

Further, "Parliament will need to be satisfied that the procedures in the bill for making and approving the secondary legislation are appropriate. Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance that will have to be struck between the importance of scrutiny and the speed of this process” (para 3.20)

Special scrutiny?

Earlier in March the House of Lords Constitution Committee, anticipating wide rulemaking powers, issued a strong warning (click here for news report), over the need to safeguard the rights of Parliament in providing proper scrutiny of the exercise of such “exceptional” powers. It also argued that Parliament should seek to limit the scope of the delegated powers contained in the bill, and develop several new processes to ensure that the Government uses the delegated powers it acquires under the bill appropriately.

The white paper, however, gives little indication of a willingness to accept any such procedures, as opposed to the constraints already referred to on the content of the provisions. Elliot criticises it for failing to “engage in any meaningful way with the committee's detailed analysis of how the exercise of the powers granted by the bill should be subject to parliamentary oversight and control”.

He concludes on this aspect: “For a white paper proposing the enactment of legislation conferring unprecedented ministerial powers to have nothing more than this to say about how those powers should be scrutinised by Parliament is astonishing. Questions about parliamentary scrutiny lie at the constitutional core of the issues raised by the bill, and it is regrettable, to put it mildly, that the white paper contributes so little of substance to the ‘discussion’ for which it calls.”

Issues of timing may also arise, especially if it appears that an agreement as to the UK's continuing relations with the EU may be in doubt at a late stage. At para 1.20 the paper repeats the Government's belief that “no deal for the UK is better than a bad deal for the UK”, and the bill will therefore “support the scenario where the UK left the EU without a deal in place, by facilitating the creation of a complete and functioning statute book no longer reliant on EU membership”. The extent of the powers necessary to do so was one of the first concerns raised after publication of the white paper).

On the other hand one might question whether the lack of a deal would in itself exacerbate the issue: if the Act provides for continuity in the first stages after exit, it is arguable that there would be little additional impact in the short term. It would be more likely that if there is a new agreement with the EU, that will put some limits on the extent to which the law can then be altered so as to diverge from EU law. There will be many areas in which vigilance is needed in relation to the exercise of ministerial powers, even if a further agreement with the EU is in place.

Rights guaranteed?

A further concern is identified by Alison Young, who observes that there are no other limits on these delegated powers to ensure that they do not inadvertently harm human rights. She comments: “A restriction to ensure that delegated powers granted to the executive cannot remove rights under the Human Rights Act 1998, or the Equality Act 2010, would be welcomed. With speed, comes a greater possibility of making mistakes. A legal restriction on the power to enact delegated legislation would allow such mistakes to be prevented by the courts, protecting human rights.”

The white paper's approach to human rights is to assure readers that while those deriving from EU law itself will not continue, that should not affect the fundamental rights now enjoyed by UK residents. At para 2.23 it states that the EU's Charter of Fundamental Rights will not be converted into UK law, since it only applies to member states when acting within the scope of EU law.

“However,” it continues, “the Charter was not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU institutions or member states in relation to EU law... The Government’s intention is that the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK.”

And it asserts: “The UK’s withdrawal from the EU will not change the UK’s participation in the ECHR and there are no plans to withdraw from the ECHR” (para 2.22).

Regarding the former point, Young believes it to be unclear that removal of the Charter will not affect rights, contending that some rights are protected to a greater degree than they are under the ECHR. One “notable example” is article 8 of the Charter, which protects the right to personal data, going beyond the protections found in ECHR, article 8 which protects the right to privacy. There is nothing in the white paper about how any gaps that result may be filled to ensure that the removal of the Charter does not affect rights.

Issues regarding the preservation of rights currently underpinned by EU law are further developed by Professor Michael Ford, with particular reference to workers' rights. Ford argues that although the white paper attempts to reassure us that such rights will continue to be guaranteed in law post-Brexit, they will have no privileged status, and will be vulnerable to being watered down by delegated legislation – which need not be made under the “Henry VIII” powers to be enacted. Part 1 of the Legislative and Regulatory Reform Act 2006, which permit the making of statutory instruments in order to remove “any burden, or the overall burdens”, resulting from any legislation, could he suggests be invoked to remove rights perceived by some politicians to be unduly burdensome to employers.

Ford also points to hidden complexities in the status to be given to CJEU case law, particularly in relation to its interpretive principles such as that national law must be read so as to achieve the requirements of EU law, or that procedural rules must be as effective in relation to EU-derived rights as in relation to similar domestic actions. To what extent will such decisions be recognised under the continuity approach?

Devolved powers

As regards the devolved legislatures the white paper reveals that: “To provide the greatest level of legal and administrative certainty upon leaving the EU, and consistent with the approach adopted more generally in legislating for the point of departure, the Government intends to replicate the current frameworks provided by EU rules through UK legislation. In parallel we will begin intensive discussions with the devolved administrations to identify where common frameworks need to be retained in the future, what these should be, and where common frameworks covering the UK are not necessary.”

The outcome, the Government expects, “will be a significant increase in the decision making power of each devolved administration”.

Without specifically saying so, the white paper appears to be suggesting that the UK Government intends to assume some of the powers currently residing in Brussels, even where these fall within devolved areas of competence, before negotiating over their transfer. That would require some new reservations to be written into the Scotland Act, which one cannot see the Scottish Parliament accepting under the Sewel convention – now s 2 of the Scotland Act 2016. The UK Supreme Court in the Miller appeal ([2017] UKSC 5) regarded the convention as carrying political weight rather than legal enforceability, but it would surely place further strains on the Union if the Government were to attempt to override the Scottish Parliament over the extent to which powers that the latter might expect to acquire in the wake of Brexit, actually vest in Scotland.

The complexities of the Brexit process are still only beginning to emerge, and much more of the level of expert analysis cited here will be needed if they are to be properly addressed. It can only be hoped that the UK Government will show itself willing to face up to, rather than attempt to smooth over the issues that will continue to arise, rather than simply invoke the need for delegated powers and leave the courts to sort out whatever difficulties arise.