Revised Brexit bill brings more clarity for UK judges, less power for ministers

17 April 2018 2:52pm
Houses of Parliament London

13 April 2018. By Matthew Holehouse.

UK judges will get more clarity on how to treat decisions of the EU’s top court under government plans to amend the legislation to prepare Britain’s statute books for Brexit.

The government will also curtail ministers’ powers to establish new regulators and fee-collecting regimes, after lawmakers warned the draft bill would spell chaos.

The changes were revealed yesterday when the government proposed eight amendments to the EU (Withdrawal) Bill, which is undergoing scrutiny in the House of Lords, the unelected upper chamber of the UK Parliament.

The government admitted that the bill as originally drafted would have left it unable to amend EU technical decisions — such as lists of prohibited pesticides — potentially leaving regulatory regimes frozen on exit day.

The move came in response to a report by the Lords Constitution Committee, which described the powers of the bill as raising “profound, wide-ranging and interlocking constitutional concerns” and risking “confusion and uncertainty” over the statute book.

The bill will repeal the European Communities Act, breaking the link with the EU legal order, preserving EU law in domestic statute, and granting ministers broad powers to make amendments where retained EU law would no longer function.

Guidance for judges

The most significant amendment aims to give British judges more guidance on following the decisions of the EU’s top court, even after the UK is no longer part of the bloc’s legal system.

The original bill proposed that UK courts treat pre-Brexit legal precendents from the EU Court of Justice as binding. They “need not have regard” to any post-exit rulings from the Luxembourg court “but may do so if it considers it appropriate,” the bill said.

This was met with protests from UK Supreme Court judges, who warned that the formulation would force them into making policy decisions on politically-charged questions of EU law and leave them open to political attack.

Under the proposed amendment, judges will be given greater encouragement to take into account EU Court of Justice decisions if they think they are pertinent. The words “need not have regard to” will be removed, and the word “appropriate” will be replaced with “relevant.”

The bill will also specify that British judges can look at any decision or document from an EU agency or institution to guide them.

“These changes are designed to make it clear that the government does not expect [judges] to make policy choices when interpreting retained EU law,” Brexit minister Martin Callanan said in a statement.

Ministerial powers

The original bill also created a broad power for ministers to use secondary legislation to correct any “deficiencies” in the statute book — including amending primary legislation — to ensure UK law continues to work.

Lawmakers had warned that this could give rise to rule by decree, with significant policy changes pushed through with minimal scrutiny in Parliament.

The new proposal would scrap powers for ministers to use secondary legislation to establish new regulatory bodies, impose or increase levies on regulated companies, or from amending the laws governing the devolution settlements with Scotland, Wales and Northern Ireland.

Also, ministers will now have to justify why they choose to use secondary legislation and publish an annual report on the use of these powers.

Litigation

The withdrawal bill as originally drafted would stop claimants from challenging legislation or government decisions on the basis of “general principles” of EU law, such as legal certainty, equality or proportionality.

It would also scrap the so-called Francovich damages regime, under which an individual can seek compensation from the government if their rights are infringed as a result of the state failing to comply with EU law.

Lawyers argued that denying the possibility of redress for events that took place before Brexit would amount to a loss of rights, possibly resulting in further legal challenges.

Under a proposed compromise, the government’s latest amendment will create a two-year grace period for individuals to bring Francovich or general principles cases to court, for facts relating to a period before Brexit.

Status of retained EU law

One of the biggest areas of confusion was the status of EU law once transposed into UK law. Lawmakers wanted to know whether it should be treated as primary or secondary legislation, which would determine its status before the courts during legal challenges and how it could be amended.

Initially, the government refused to clarify further, saying this would be addressed by judges and ministers as issues arose — a proposal the Lords committee warned was “a recipe for confusion and legal uncertainty”.

The government is now proposing to create two new categories of UK law.

“Retained direct principal EU legislation” will refer to EU regulations, which should be treated as if they were primary legislation. “Retained direct minor EU legislation” will cover guidance issued by EU institutions and EU tertiary legislation – such as the lists of prohibited pesticides, which are subject to regular updating by the bloc's institutions.

Once preserved in the UK law, ministers will have the power to amend these later on.

“The government’s amendments seek to balance maintaining certainty about the law and parliamentary scrutiny with a managed process of change once this law is part of the UK legal order,”  the government statement said. “Without the ability to adjust retained direct EU legislation through subordinate legislation we face a serious risk of these regimes ceasing to function.”

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