The UK rips out its EU-law drip, only to hook up to another

19 April 2018 3:40pm
Aerial view of the Houses of Parliament

12 April 2018. By Matthew Holehouse.

For many lawmakers in the UK’s ruling Conservative Party, the passage of the EU (Withdrawal) Bill, legislation to prepare the UK statute book for Brexit, will be the fulfilment of a decades-long mission.

After all, its very first clause orders the repeal of the European Communities Act 1972, legislation that has for decades acted like a drip’s catheter, holding open the veins of the UK’s legal system to a steady flow of EU law.

To the Brexiteer lawmakers, pulling that drip out and ending the primacy of EU law is a fundamental part of the Brexit promise of regained sovereignty, and symbolizes the recovery of the patient.

But their cheer looks set to be short-lived: Another drip is being prepared to take its place.

This October, Parliament will be asked to sign off a new legal base for the UK’s EU withdrawal agreement. An interim deal struck last month includes a transition period, extending the UK’s participation in the bloc’s market for 21 months, and other obligations that will exist in perpetuity.

The legislation needed to give legal force in the UK to the divorce deal is the EU Withdrawal Agreement and Implementation Bill, known to officials as the WAIB. Government drafters are still at work on it, and it will be published once the UK and EU strike a final deal.

While the government is studying how other member states apply EU law in the hunt for an alternative, it’s likely that the UK will have little choice but to replicate much of the language and structure of the European Communities Act in the WAIB. A rocky ride awaits.

The challenge

The WAIB will do several things.

It will deliver the transition period into UK law. This will include the obligation for all existing EU laws, and new ones that come into force before the end of the transition period, to apply in Britain with “the same legal effects” as elsewhere in the bloc and with oversight of the EU Court of Justice.

The WAIB has to bind the UK to continue paying in to the bloc’s budget for the duration of the transition period and continue paying its outstanding budget liabilities, in instalments expected to run until 2064.

It will also deliver a wide range of obligations imposed by the withdrawal agreement, including provisions on citizens’ rights, and rules governing ongoing court cases, state-aid investigations, data transfers and nuclear material. In many of these areas, these rely on the continued application of EU law in the UK.

On citizens’ rights, the UK and EU agree explicitly that the withdrawal agreement will create rights based in EU law for individuals that can be invoked before the UK courts, and that any domestic law that contradicts these are disapplied — the principles of direct effect and primacy.

For the UK’s other long-standing post-exit obligations that rely on EU law, the EU proposes too that these laws have the “same legal effect” in Britain as inside the bloc, and that to achieve this, the UK must grant the “required powers of its judicial and administrative authorities, through domestic primary legislation.” The UK is disputing this demand.

Case law

The withdrawal agreement therefore proposes recreating elements, permanently for citizens’ rights and the divorce terms and temporarily for the transition, of the current relationship between UK and EU law — which is delivered through the European Communities Act.

Section 2(1) of the Act give EU regulations and elements of the EU treaties effect in the UK without further domestic legislation. Section 2(2) gives ministers the power to implement other areas of EU law via secondary legislation. Section 2(4) asserts that such legislation supersedes any contradicting domestic law. Section 3 obliges UK courts to seek and adhere to the decisions of the EU Court of Justice.

This is quite different to how the obligations of other international agreements, such as UN treaties, are typically implemented in domestic law using primary legislation.

One factor the government must weigh is the long trail of court cases that have underpinned the functioning of the European Communities Act, which would be lost if the WAIB uses different formulations.

“If the EU’s demands are accepted — and I don’t see how they won’t be — then Parliament must indeed re-enact the European Communities Act 1972 in a slightly modified manner,” said Tobias Lock, senior lecturer in EU law at Edinburgh University.

“[There will be] references to the withdrawal agreement instead of community law and so on, but it would make sense to use the same language to signal continuity to the courts.”

Laurent Pech, professor of EU law at Middlesex University, agrees. Delivering the principles of direct effect and primacy on citizens’ rights “may therefore mean some sort of new European Communities Act, with a new name, and obviously a much more limited material scope,” he said.

Risk ahead

So far, Conservative lawmakers unhappy at Theresa May’s proposed divorce and transition deal are prepared to bite their tongues. But they are impatiently waiting to see the draft implementation bill, and its introduction to Parliament will bring matters to a head.

Being asked to pass legislation that more resembles an accession instrument than a divorce and that reinstates the primacy of EU law in the UK, albeit limited, might be hard to swallow.

The government will rely on its overarching wish to see Brexit actually delivered being stronger than its distaste at how this is achieved. But the risk of anger boiling over in the final months of the withdrawal talks — with unpredictable consequences — cannot be ruled out.

Brexit Special Report